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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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


* Retired Senior Judge assigned to the Superior Court.
J. S40004/15


            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




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