J-A13035-19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          : PENNSYLVANIA
                  Appellee                :
          v.                              :
                                          :
GEORGE J. TORSILIERI,                     :
                                          :
                  Appellant               : No. 2300 EDA 2018

       Appeal from the Judgment of Sentence Entered July 10, 2018
             in the Court of Common Pleas of Chester County
           Criminal Division at No(s): CP-15-CR-0001570-2016

BEFORE:        SHOGAN, J., NICHOLS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                   FILED AUGUST 16, 2019

      George Torsilieri (Appellant) appeals from his judgment of sentence

imposed following his convictions for aggravated indecent assault and

indecent assault. We affirm.

      On the evening of November 13, 2015, a group of four friends,

including Jessica Penman, Ryan Quirk, and the Victim in this case, gathered

at Penman’s apartment to socialize following a dinner out together.       The

friends knew each other from college and had recently graduated and begun

their careers as engineers. About 9:00 or 9:30 p.m., two of Penman’s co-

workers, one of whom was Appellant, arrived at the apartment. Appellant

and Victim did not know each other and had never met prior to this evening.

About a half hour later, another one of Penman’s co-workers arrived. As the

seven individuals were socializing, most were drinking alcohol “casually,” but

Victim was not.      At about 11:30 p.m., three people left the apartment.

*Retired Senior Judge assigned to the Superior Court.
J-A13035-19

Those remaining were Appellant, Victim, Penman, and Quirk. The foursome

decided to leave the apartment around 11:30 p.m. or midnight to walk to

local bars. They consumed alcohol at two places until closing time at 2:00

a.m. On their way back, they stopped at 7-Eleven, where Victim bought and

ate some food as the group walked back to Penman’s apartment.

     The trial court summarized the subsequent factual history as follows.

            When they arrived back at [] Penman’s apartment, []
     Penman, [Appellant,] and [Victim] sat on the couch and [] Quirk
     sat on a recliner across from the couch. [Victim] sat on one end
     of the couch, [Appellant] was in the middle, and [] Penman was
     at the other end.       While conversing with one another, []
     Penman, [Victim], and [Appellant] split one glass of wine
     amongst themselves in order to finish the bottle that [] had
     [been opened] earlier [in the evening]. The group continued to
     socialize for approximately forty-five (45) minutes to an hour.

            Leaning on the arm of the couch, away from [Appellant],
     [Victim] fell asleep at approximately 3:15 or 3:30 a.m. At some
     point, [Victim] awoke to find [Appellant] on top of her kissing
     her face and neck and touching her breasts under her shirt. At
     trial, [Victim] described being confused when she awoke and
     wondering where she was and who was on top of her. She
     thought at first that it might have been [Quirk], who was
     sleeping on the floor across from the couch.              Then she
     distinguished [Appellant’s] facial features and realized that it was
     not [] Quirk, but [Appellant] who was kissing her and fondling
     her breasts under her shirt.

           [Victim] testified that [Appellant], without saying a word or
     even making eye contact with her, slid his hand in [Victim]’s
     jeans and digitally penetrated her. [Appellant] then brought his
     hips [and exposed, erect penis] up to [Victim]’s face such as to
     indicate that he wanted [Victim] to perform oral sex on him.
     [Victim] said “No.”      [Appellant] moved his hips away from
     [Victim]’s face. A few moments later he brought them [and his
     penis] back up to [Victim]’s face. [Victim] again said “No.”
     [Appellant] again moved his hips away from [Victim]’s face. He



                                    -2-
J-A13035-19


      then “shifted down[,]” and pulled off her pants, and inserted his
      penis in her vagina.

             [Victim] described feeling “frozen” and “paralyzed[,]” so
      afraid that she could[ not] move. …Quirk, who was sleeping on
      the floor opposite the couch, testified that he heard “making out
      noises” and “moaning” that “sounded like excitement, like
      excitement style of moaning, that someone would be enjoying
      sex.”    [Victim], however, describing [Appellant’s] actions as
      “painful[,]” insisted instead that the sounds Quirk heard were
      from her saying “ow” a few times and making what she
      characterized as “painful breath sounds.” …

             [Because Appellant had not respected her saying “no”
      twice already, Victim did not believe he would stop the vaginal
      intercourse if she said “no” again.] Instead, in a “moment of
      clarity[,]” she asked [Appellant] whether he had a condom on …
      to induce [Appellant] to withdraw his penis and stop the
      encounter.     [Appellant] did in fact withdraw.    He sat up,
      supported by his knees, with his legs on either side of [Victim]
      and reached down [from the couch] to grab his pants. He pulled
      a condom out of the wallet in his back pocket, put it on, and
      then reinserted his penis into [Victim]’s vagina, continuing the
      sex act.

             After [Appellant] climaxed, [Victim] pushed his shoulder
      up, swiveled her legs, got up, went into the bathroom and
      washed herself. She saw she was bleeding from the vagina. It
      was approximately 5:50 a.m. She estimated that the entire
      encounter lasted roughly ten (10) minutes. [Victim] then texted
      [her best] friend from another room, woke Penman up, and the
      friend whom she texted spoke to Penman by phone to tell
      Penman that [Victim] had just been assaulted. Penman drove
      [Victim] to the police station to report the assault. Before they
      left, [Victim] grabbed the used condom that was on the table by
      the couch. [Appellant] was lying on the couch with his head
      turned to the side so [Victim] could not tell whether he was
      awake or asleep.

Trial Court Opinion, 10/9/2018, at 3-6 (citations to the record omitted).

After reporting the assault to the police, Victim was examined at the hospital

by a Sexual Assault Nurse Examiner (SANE), who is trained specifically in,

                                    -3-
J-A13035-19

inter alia, the treatment of injuries and collection and maintenance of

evidence from sexual assaults.

        Based on the aforementioned incident, Appellant was charged with one

count of rape, two counts of aggravated indecent assault, one count of

sexual assault, and two counts of indecent assault.     A six-day jury trial

began on June 26, 2017.          At the close of the Commonwealth’s case,

Appellant moved for judgment of acquittal, which the trial court granted as

to the charges of rape, one count of aggravated indecent assault, 1 and one

count of indecent assault.2 On July 3, 2017, the jury found Appellant guilty

of aggravated indecent assault3 and indecent assault,4 and not guilty of

sexual assault.

        On November 27, 2017, the trial court sentenced Appellant to an

aggregate term of imprisonment of one year minus one day to two years

minus one day, to be served in county prison, followed by three years of

probation.    Further, Appellant was deemed work release eligible after 18

months of imprisonment, and parole eligible after 22 months.




1   18 Pa.C.S. § 3125(a)(2).

2   18 Pa.C.S. § 3126(a)(2).

3   18 Pa.C.S. § 3125(a)(1).

4   18 Pa.C.S. § 3126(a)(1).



                                     -4-
J-A13035-19

      Appellant filed timely a post-sentence motion on December 7, 2017, in

which he challenged the discretionary aspects of his sentence and also

claimed the verdict was against the weight of the evidence. On February 8,

2018, the trial court granted in part Appellant’s post-sentence motion,

modifying Appellant’s sentence to make him work release eligible after

serving 14 months of his sentence, and parole eligible after 18 months. In

all other respects, Appellant’s post-sentence motion was denied and

dismissed.

      On February 16, 2018, the Commonwealth filed a timely post-sentence

motion from the trial court’s February 8, 2018 judgment of sentence,

arguing, inter alia, that the trial court erred by modifying Appellant’s

sentence outside the presence of the parties.     On July 9, 2018, the trial

court held a hearing.   At the hearing, the trial court conceded the error,

granted in part the Commonwealth’s motion, vacated the February 8, 2018

judgment of sentence, and resentenced Appellant by imposing the same

sentence that it had imposed on February 8, 2018. Order, 7/10/2018.

      Meanwhile, on February 27, 2018, Appellant filed a petition to file a

post-sentence motion nunc pro tunc from the trial court’s February 8, 2018

judgment of sentence, stating therein that he was seeking to challenge the

constitutionality of the Sex Offender Registration and Notification Act

(SORNA), 42 Pa.C.S. §§ 9799.10-9799.42.        The Commonwealth objected,

and on March 27, 2018, the trial court granted Appellant’s petition.



                                    -5-
J-A13035-19

      Appellant filed his post-sentence motion nunc pro tunc challenging the

constitutionality of SORNA on May 18, 2018. The court heard argument on

this issue at the July 9, 2018 hearing. The next day, the trial court issued

an   order   granting    Appellant’s   motion,   finding   that   the   registration

requirements of SORNA are unconstitutional and vacating the portion of

Appellant’s sentence which required him to register as a sex offender.5

Order, 7/10/2018, at 2-3.



5      On July 13, 2018, the Commonwealth filed an appeal with our
Supreme Court, docketed at 37 MAP 2018, pursuant to 42 Pa.C.S. § 722(7)
(relating to our Supreme Court’s exclusive jurisdiction of appeals from final
orders of the court of common pleas in matters where the court of common
pleas has held, inter alia, a statute unconstitutional).     That appeal is
pending.

       While we recognize that this implicates the jurisdiction of both this
Court and our Supreme Court, neither party has raised any jurisdictional
issues and we believe both appeals are jurisdictionally sound. See 42
Pa.C.S. §§ 704 (relating to waiver of objections to jurisdiction); 722(7); 742
(relating to jurisdiction of Superior Court); Harrington v. Commonwealth
Dep’t of Transp., 763 A.2d 386, 393 (Pa. 2000) (“[S]ound jurisprudential
principles warrant selectivity in the determination of issues that are not
within the scope of the Court's mandate. Such reasons include allowance for
the development of the questions in the common pleas and intermediate
appellate courts, which is particularly beneficial where … the intermediate
appellate court is possessed with special expertise in the particular
substantive area of the law under review, and conservation of our own
judicial resources. Accordingly, henceforth, to the extent that litigants seek
review of ancillary and/or previously undecided issues in a direct appeal
pursuant to [42 Pa.C.S. §]722(7), they are directed to develop reasons why
such issues should be specially considered, along the lines of the guidelines
stated in Pennsylvania Rule of Appellate Procedure 1114 [(relating to
standards governing discretionary allowance of appeal to Pennsylvania
Supreme Court)]. In the absence of such reasons, the general practice of
[the Pennsylvania Supreme] Court will be to remand to the common pleas
(Footnote Continued Next Page)


                                       -6-
J-A13035-19

      This timely-filed appeal followed.                Appellant and the trial court

complied with Pa.R.A.P. 1925.                    On appeal, Appellant challenges his

convictions based on both the sufficiency and weight of the evidence.

      Challenges to the sufficiency of the evidence and the weight of the

evidence are two distinct issues.                See Commonwealth v. Widmer, 744

A.2d 745, 751-52 (Pa. 2000).                 Evidence is sufficient to support a verdict

when it establishes each material element of the crime charged and

commission of the crime by the accused beyond a reasonable doubt.                   Id.

The remedy for a successful challenge to the sufficiency of evidence is a

judgment of acquittal. Id. A challenge to the weight of the evidence, on the

other hand, concedes there is sufficient evidence to sustain the verdict. Id.

The remedy for a successful challenge to the weight of the evidence is a new

trial. Id.

      Appellant first argues that the evidence was insufficient to sustain both

of his convictions because the Commonwealth failed to prove the element of

nonconsent beyond a reasonable doubt. Appellant’s Brief at 4, 17.




(Footnote Continued)   _______________________

court, or, where appropriate, transfer to the appropriate intermediate
appellate court, for consideration of ancillary or unresolved issues.”); see
also Estate of Hicks v. Dana Corp., 909 A.2d 29 (Pa. 2006) (affirming as
to the issue of a statute’s unconstitutionality, and transferring ancillary
issues to Superior Court).




                                                 -7-
J-A13035-19

      To address a challenge to the sufficiency of the evidence, we must

determine

      whether, viewing all the evidence admitted at trial in the light
      most favorable to the [Commonwealth as 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 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.

Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa. Super. 2015)

(citation omitted).

      Furthermore, in a sufficiency challenge, in addition to viewing the

evidence in the light most favorable to the Commonwealth, we must look at

“all reasonable inferences drawn” from the evidence in the light most

favorable to the Commonwealth. Commonwealth v. Wise, 171 A.3d 784,

790 (Pa. Super. 2017). “The evidence established at trial need not preclude

every possibility of innocence.”   Commonwealth v. Rodriguez, 141 A.3d

523, 525 (Pa. Super. 2016).

      The relevant aggravated indecent assault statute provides as follows.

      (a) Offenses defined.--Except as provided in sections 3121
      (relating to rape), 3122.1 (relating to statutory sexual assault),
      3123 (relating to involuntary deviate sexual intercourse) and
      3124.1 (relating to sexual assault), a person who engages in
      penetration, however slight, of the genitals or anus of a

                                     -8-
J-A13035-19


      complainant with a part of the person’s body for any purpose
      other than good faith medical, hygienic or law enforcement
      procedures commits aggravated indecent assault if:

             (1) the person does so without the complainant’s
             consent[.]

18 Pa.C.S. § 3125(a)(1).         “[D]igital penetration of the vagina is sufficient

evidence    to   support   a     conviction   for   aggravated   indecent   assault.”

Commonwealth v. Filer, 846 A.2d 139, 141 (Pa. Super. 2004).

      The relevant indecent assault statute provides 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 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:

             (1) the person does so without the complainant’s
             consent[.]

18 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.

      Because the statutes do not specify otherwise, the default mens rea of

“intentionally, knowingly or recklessly”6 applies to both offenses. 18 Pa.C.S.

§ 302(c).



6

      (1) A person acts intentionally with respect to a material element
      of an offense when:

(Footnote Continued Next Page)


                                         -9-
J-A13035-19

      In his statement of the questions presented, Appellant contends that

“the Commonwealth failed to establish the element of nonconsent” for the

offenses of aggravated indecent assault and indecent assault, but in the

(Footnote Continued)   _______________________

             (i) if the element involves the nature of his conduct or a
             result thereof, it is his conscious object to engage in
             conduct of that nature or to cause such a result; and

             (ii) if the element involves the attendant circumstances, he
             is aware of the existence of such circumstances or he
             believes or hopes that they exist.

      (2) A person acts knowingly with respect to a material element
      of an offense when:

             (i) if the element involves the nature of his conduct or the
             attendant circumstances, he is aware that his conduct is of
             that nature or that such circumstances exist; and

             (ii) if the element involves a result of his conduct, he is
             aware that it is practically certain that his conduct will
             cause such a result.

      (3) A person acts recklessly with respect to a material element
      of an offense when he consciously disregards a substantial and
      unjustifiable risk that the material element exists or will result
      from his conduct. The risk must be of such a nature and degree
      that, considering the nature and intent of the actor’s conduct
      and the circumstances known to him, its disregard involves a
      gross deviation from the standard of conduct that a reasonable
      person would observe in the actor’s situation.

18 Pa.C.S. § 302(b)(1), (2), (3); see also Pa. Suggested Standard Jury
Instructions (Crim), §§ 15.3125A (“A defendant acts ‘recklessly’ with regard
to an alleged victim’s nonconsent if [he] consciously disregards a substantial
and unjustifiable risk that the victim is not consenting to the penetration.”),
15.3126A (A defendant acts ‘recklessly’ with regard to an alleged victim’s
nonconsent if he or she consciously disregards a substantial and unjustifiable
risk that the victim is not consenting to the contact.”).




                                                 - 10 -
J-A13035-19

argument section of his brief, Appellant concedes that “a reasonable jury

could have found that [Victim] was not consenting to the acts.” Appellant’s

Brief at 4, 20.      Instead, Appellant focuses on the contention that the

evidence was insufficient to prove that he acted knowingly or recklessly

regarding Victim’s nonconsent. Id. at 17, 20-21. In other words, Appellant

contends there was insufficient evidence of the mens rea element to sustain

both of his convictions.

         Appellant waived this issue by failing to raise it in his Pa.R.A.P.

1925(b) statement or the statement of questions involved section of his

brief.    See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the [Rule

1925(b) s]tatement … are waived.”); Pa.R.A.P. 2116(a) (“No question will be

considered unless it is stated in the statement of questions involved or is

fairly suggested thereby.”); Commonwealth v. Lord, 719 A.2d 306, 309

(Pa. 1998) (“Any issues not raised in a 1925(b) statement will be deemed

waived”); Commonwealth v. Kennedy, 151 A.3d 1117, 1122 n.12 (Pa.

Super. 2016) (finding sufficiency of the evidence claim waived where it was

contained in the argument portion of brief, but not included in statement of

questions involved); see also Rule 1925(b) Statement, 8/24/2018, at

¶ 16(a) (raising claim that “the Commonwealth failed to establish the

element of non-consent beyond a reasonable doubt, inasmuch as there was

no evidence that [Victim] did not consent to intercourse”); Appellant’s Brief

at 4 (same).



                                     - 11 -
J-A13035-19

      However, even if we were to reach the merits of this argument,

Appellant   would   not   be   entitled   to   relief.   As   noted   supra,   the

Commonwealth was required to prove that Appellant consciously disregarded

a substantial and unjustifiable risk that Victim did not consent.       Appellant

argues that because Victim “did not manifest her nonconsent in some of the

more commonly used ways, such as saying ‘no,’ ‘stop,’ ‘I don’t want to’” or

in nonverbal ways such as to “get up or shift away from [Appellant] during

the encounter, make physical space between them with her arms or legs or

push him, or call out to a … friend,” Appellant could not have acted

knowingly or recklessly. Appellant’s Brief at 27.

      It is well-settled that, “[i]n a prosecution for sex offenses, a verdict

may rest on the uncorroborated testimony of the victim.” Commonwealth

v. Cody, 584 A.2d 992, 993 (Pa. Super. 1991) (case citation omitted); see

also 18 Pa.C.S. § 3106 (“The testimony of a complainant need not be

corroborated in prosecutions under this chapter[, Sexual Offenses].”).

Moreover, “[t]he Commonwealth is not required to prove mens rea by direct

evidence.   Frequently such evidence is not available.        In such cases, the

Commonwealth may rely on circumstantial evidence.” Commonwealth v.

Beasley, 138 A.3d 39, 48 (Pa. Super. 2016) (citation omitted). Further, a

sexual offense victim is not required to resist the perpetrator.      18 Pa.C.S.

§ 3107.




                                     - 12 -
J-A13035-19

      In the instant case, Victim testified that she had been sleeping for

about two hours when she awoke to Appellant on top of her kissing her face

and neck and fondling her breasts. N.T., 6/27/2017, at 101-02, 104-08. As

she was waking up to this, she was confused and moved her head back and

forth to get her bearings. She testified that Appellant then “started fingering

me, putting his hands inside of my vagina. …He was putting his finger or

fingers, I’m not exactly sure, but inside of my vagina.” Id. at 108. When

Victim was asked by the prosecutor whether she wanted Appellant to do

this, she answered “No.      I was asleep.”   Id. at 109, 135-36.   Victim was

wearing stretchy jeans, or “jeggings,” which could be pulled down without

unbuttoning.   Id. at 108.     Appellant, who was up on his knees straddled

over Victim, then brought his exposed, erect penis up to Victim’s face,

indicating he wanted oral sex, and she unequivocally said “no.” Id. at 109-

11. While Appellant did move his hips away from her face, Victim testified

that “moments later he brought his hips right back to my face” and put his

penis in her face for a second time.     Id. at 110.   Victim testified, “And I

again said no. And then he moved his hips away and put his penis inside my

vagina after that.” Id.; see also id. at 111 (Victim testifying that “[h]e did

back away, again didn’t say anything or look me in the eyes. But then he

just shifted his body down and put his penis inside of me.”).

      Victim testified that during this encounter, her legs were “frozen,” her

body was paralyzed, and she “was so afraid” that she “couldn’t move.” Id.



                                     - 13 -
J-A13035-19

at 111-12. She said she felt like she was a “plank” and she “didn’t move at

all.” Id. at 117. Victim never kissed Appellant back or put her hands on or

around Appellant’s body; she kept her arms at her side. Id. at 102, 104,

109, 113.      At no time did Victim move her body in any way to assist

Appellant in removing her pants and underwear.             Id. at 112 (Victim

confirming she did not move her hips up to allow Appellant to take her pants

off more easily, or hook her thumbs in her underwear and push it down her

legs).    After Appellant inserted his penis inside Victim, she testified that it

was painful, she said “ow” a few times, she made “painful breath sounds”

and was wincing. Id. at 112-13.

         Further, Victim testified that she had never met Appellant before that

night. Id. at 84. During the course of the evening of November 13, 2015

and into the early morning hours of November 14, Victim testified that she

did not spend any time alone with Appellant, did not dance with him, hold

his hand, snuggle up to him, hold him around his waist, hug him, kiss him,

tell him she wanted to have sex with him, or otherwise give any kind of

indication that she was interested in any kind of sexual contact with

Appellant. Id. at 86-87, 96-97.

         Moreover, Victim testified that she was “in shock,” “disgusted,”

“terrified,” and “confused,” and she described the encounter with Appellant

as “awful” and “terrifying.”      Id. at 103, 105, 110, 112.        Immediately

afterward, Victim went to the bathroom, where she discovered she was



                                      - 14 -
J-A13035-19

bleeding from her vagina. Id. at 120-21. She then immediately reported

the incident to two friends and to police, and Victim underwent a SANE exam

with a certified nurse that same morning. Id. at 121, 123-132.

      In sum, the evidence demonstrates that Victim woke up to Appellant’s

sexual advances, told him “no” twice, and did not say or do anything to

indicate that she was interested in sexual contact with Appellant.       It is

apparent that the jury credited Victim’s testimony and we cannot re-weigh

such evidence. Commonwealth v. Rodriguez, 141 A.3d at 525 (holding

that the “fact-finder is free to believe all, part, or none of the evidence

presented” and it “is not within the province of this Court to re-weigh the

evidence and substitute our judgment for that of the fact-finder”). Further,

to the extent that Appellant argues there are discrepancies between his and

Quirk’s testimonies and the testimony of Victim, such a challenge goes to

weight, not sufficiency.   Commonwealth v. Bowen, 55 A.3d 1254, 1262

(Pa. Super. 2012) (holding claim that factfinder should have believed

Appellant’s version of events over another witness’s version goes to the

weight, not the sufficiency of the evidence). Thus, when viewed in the light

most favorable to the verdict winner, the evidence establishes sufficient

support for the factfinder to infer that Appellant consciously disregarded the

substantial risk that Victim did not consent, at a minimum, to Appellant’s




                                    - 15 -
J-A13035-19

kissing her, fondling her breasts, and digitally penetrating her vagina.7

Accordingly, we find the evidence sufficient to support both of Appellant’s

convictions.

      Next, to review Appellant’s challenge to the weight of the evidence for

both of his convictions, the following standard is applicable.




7 Appellant’s contention that his acquittal by the jury on the sexual assault
charge means that the jury “found that [Victim’s] clear, verbal ‘no’ did not,
in itself, render [Appellant] knowing or reckless as to [Victim’s] lack of
consent to ‘any and all sexual activity,’” see Appellant’s Reply Brief at 5, is
without merit.     Our Supreme Court has stated that “[f]ederal and
Pennsylvania courts alike have long recognized that jury acquittals may not
be interpreted as specific factual findings with regard to the evidence, as an
acquittal does not definitively establish that the jury was not convinced of a
defendant’s guilt.” Commonwealth v. Moore, 103 A.3d 1240, 1246 (Pa.
2014) (citations and quotation marks omitted).

      Rather, it has been the understanding of federal courts as well
      as the courts of this Commonwealth that an acquittal may
      merely show lenity on the jury’s behalf, or that the verdict may
      have been the result of compromise, or of a mistake on the part
      of the jury. Accordingly, the United States Supreme Court has
      instructed that courts may not make factual findings regarding
      jury acquittals and, thus, cannot upset verdicts by speculation or
      inquiry into such matters.

Id. While we cannot speculate as to the jury’s specific factual findings, to
the extent Appellant argues that the jury’s guilty and not guilty verdicts are
inconsistent relating to the element of consent, it is possible the jury could
have acquitted Appellant of sexual assault based on Victim’s condom
comment, and equally possible that it determined Victim did not consent to
vaginal intercourse but acquitted him as a showing of lenity, compromise,
mistake, or some other reason. As noted supra, Appellant’s acquittal of the
sexual assault charge does not mean necessarily that the jury believed he
was not guilty. We simply do not know and this Court may not speculate or
inquire into such matters.



                                     - 16 -
J-A13035-19


     A motion for a new trial based on a claim that the verdict is
     against the weight of the evidence is addressed to the discretion
     of the trial court. A new trial should not be granted because of a
     mere conflict in the testimony or because the judge on the same
     facts would have arrived at a different conclusion. Rather, the
     role of the trial judge is to determine that notwithstanding all the
     facts, certain facts are so clearly of greater weight that to ignore
     them or to give them equal weight with all the facts is to deny
     justice. It has often been stated that a new trial should be
     awarded when the jury’s verdict is so contrary to the evidence as
     to shock one’s sense of justice and the award of a new trial is
     imperative so that right may be given another opportunity to
     prevail.

Commonwealth v. Izurieta, 171 A.3d 803, 809 (Pa. Super. 2017) (citation

omitted).

     The trial court offered the following analysis of Appellant’s weight

challenge.

           There is no dispute that the facts of the physical sexual
     contact as alleged by [Victim] occurred. [Appellant] admitted to
     them when he testified on his own behalf at trial and his DNA
     was found on the used condom. The only dispute is whether
     [Appellant’s] physical sexual contact with [Victim] occurred with
     [Victim’s] consent.[8]

           All of [Appellant’s] witnesses, with the exception of
     [Appellant] himself, were character witnesses. They were not
     present with the group of friends who gathered at [Penman’s
     apartment] on the night of November 13-14, 2015[,] and did not
     witness any interaction between [Victim] and [Appellant] at that
     time.

           Of the Commonwealth’s witnesses, only [] Quirk, the sole
     witness who was in the room with [Victim] and [Appellant] at the
     time of the assault, testified that he heard sounds coming from


8 As noted supra, Appellant concedes that a reasonable jury could find
Victim did not consent. Appellant’s Brief at 20.



                                    - 17 -
J-A13035-19


     the area of the couch that to him suggested two people having
     enjoyable consensual sex. However, the room was dark and he
     was unable to see what was happening to corroborate what he
     thought he audibly perceived. He also testified that he heard
     [Victim] say “No.”

            While [] Quirk testified that he had observed [Appellant]
     and [Victim] flirting with each other earlier in the evening, he
     testified that he also saw [Appellant] and [] Penman flirting with
     each other and that it appeared to him that [Appellant] was
     more interested in [Penman] than he was in [Victim].

             Four of the other Commonwealth witnesses who were
     present during the evening of November 13, 201[5], including
     [Victim], contradicted [] Quirk’s testimony by stating that they
     neither observed, nor in the case of [Victim], engaged in[] any
     flirtatious behavior with [Appellant].

            Further, when [Victim] entered [] Penman’s bedroom to
     alert [] Penman to what had happened to her, “she was literally
     shaking,” as [] Penman testified, “[a]nd also her face was just
     very, just kind of scared and terrified.”       The SANE nurse
     examiner, Nerine Kozioski, R.N., testified that when she
     attempted to insert a speculum into [Victim’s] vagina as part of
     the SANE exam, [Victim] “began to cry” and “was shaking” such
     that Nurse Kozioski was unable to utilize the speculum to further
     the examination.

           … [Victim’s] best friend and the person to whom [Victim]
     first reported the assault via text messages, testified that
     [Victim’s] text to her shortly after the assault occurred stated
     “Jess’s co-worker literally just raped me. I literally woke up to
     him inserting his penis into my vagina. It fucking hurt. And now
     I’m bleeding.”

           The overwhelming weight of the evidence supports the
     conclusion that [Appellant’s] sexual contact with [Victim] was
     unwelcome and non-consensual. In any event, it is a question of
     credibility, which is squarely, and exclusively, within the province
     of the fact-finder.

            The fact-finder, in this case the jury, who is free to believe
     all, part, or none of the evidence presented, chose to credit the
     testimony of [Victim] and the greater majority of those

                                    - 18 -
J-A13035-19


      Commonwealth witnesses able to testify regarding the behavior
      of [Appellant] and [Victim] on the night of November 13-14,
      2015, who testified that [Victim’s] interactions with [Appellant]
      throughout the evening and her demeanor after the sexual
      contact occurred were inconsistent with [Appellant’s] narrative
      that his sexual encounter with [Victim] was welcomed and
      consensual. The jury rejected [Appellant’s] characterization of
      the encounter and [] Quirk’s uncorroborated auditory
      impressions. This does not shock the conscience of the [trial
      court. Appellant’s] claim that the verdict is contrary to the
      weight of the evidence has no merit….

Trial Court Opinion, 10/9/2018, at 25-28.

      Upon reconsideration of such verdict, the trial court concluded in its

discretion that the verdict did not shock its sense of justice. We discern no

abuse of discretion in this conclusion.      See Widmer, 744 A.2d at 753

(“Because the trial judge has had the opportunity to hear and see the

evidence presented, an appellate court will give the gravest consideration to

the findings and reasons advanced by the trial judge when reviewing a trial

court’s determination[.]”).

      Judgment of sentence affirmed.

      Judge Shogan joins this memorandum.

      Judge Nichols concurs in the result.




                                    - 19 -
J-A13035-19




Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary


Date: 8/16/19




                          - 20 -
