J-S75031-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    MIGUEL PATRICK BEACH,                      :
                                               :
                      Appellant                :       No. 683 WDA 2017

             Appeal from the Judgment of Sentence April 17, 2017
               in the Court of Common Pleas of Fayette County,
              Criminal Division at No(s): CP-26-CR-0000065-2016

BEFORE: SHOGAN, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                           FILED JANUARY 26, 2018

        Miguel Patrick Beach (“Beach”) appeals from the judgment of sentence

imposed after a jury convicted him of rape and aggravated indecent

assault.1 We affirm.

        The trial court set forth the relevant factual and procedural history in

its Opinion, which we incorporate herein by reference.         See Trial Court

Opinion, 8/14/17, at 1-5.

        In response to Beach’s timely Notice of Appeal, the trial court ordered

him to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. Beach filed a timely Concise Statement, after which the trial court

issued a Rule 1925(a) Opinion.


____________________________________________


1   See 18 Pa.C.S.A. §§ 3121(a)(3), 3125(a)(1).
J-S75031-17


      Beach now presents the following issues for our review:

       1. Was the evidence legally and factually insufficient to show
          that [Beach] committed the crimes of rape and aggravated
          indecent assault beyond a reasonable doubt[?]

       2. Was the court[’]s sentence excessive[?]

Brief for Appellant at 7 (capitalization omitted).

      Initially, we note that Beach has waived his second issue, as he did not

(1) set forth any argument supporting this issue in his Argument section; or

(2) raise it in his court-ordered Rule 1925(b) Concise Statement.         See

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (stating that

“where an appellate brief fails to provide any discussion of a claim with

citation to relevant authority or fails to develop the issue in any other

meaningful fashion capable of review, that claim is waived.”); see also

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (holding that

“[a]ny issues not raised in a 1925(b) statement will be deemed waived.”).

      In his remaining issue, Beach contends that the Commonwealth failed

to present sufficient evidence to convict him beyond a reasonable doubt of

rape and aggravated indecent assault. See Brief for Appellant at 10-16.

      Our standard of review of a sufficiency of the evidence claim is well

settled:

      Our standard of review is whether the evidence admitted at trial,
      and all reasonable inferences drawn from that evidence, when
      viewed in the light most favorable to the Commonwealth as
      verdict winner, were sufficient to enable the fact[-]finder to
      conclude that the Commonwealth established all of the elements
      of the offense beyond a reasonable doubt.

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J-S75031-17



Commonwealth v. Cruz, 71 A.3d 998, 1006 (Pa. Super. 2013) (citation

and brackets omitted).

             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. … Furthermore, when reviewing a
      sufficiency claim, our Court is required to give the prosecution
      the benefit of all reasonable inferences to be drawn from the
      evidence.

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (citation

omitted). Finally, “the finder 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. Melvin, 103 A.3d 1, 40

(Pa. Super. 2014) (citation omitted).

      The Crimes Code defines rape, in pertinent part, as follows: “A person

commits a felony of the first degree when the person engages in sexual

intercourse with a complainant … [w]ho is unconscious or where the person

knows that the complainant is unaware that the sexual intercourse is

occurring.” 18 Pa.C.S.A. § 3121(a)(3).

      Aggravated indecent assault is defined, in relevant part, as follows:

      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

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J-S75031-17


      slight, of the genitals or anus of a 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.A. § 3125(a)(1).

      Beach contends that “the record is devoid of any evidence to show

[that] he [] had sexual intercourse with the alleged victim while she was

unconscious.” Brief for Appellant at 15. Beach maintains that the testimony

of the victim was insufficient to support the jury’s verdicts, urging that the

victim (1) “testified that she had been drinking heavily on the date of the

incident[;]” and (2) could not recall what had transpired during the alleged

rape. Id. at 13; see also id. at 14 (wherein Beach points to the testimony

of the nurse who performed the rape kit on the victim that the victim had

stated that she did not remember the rape). Beach additionally argues that

“[t]he Commonwealth failed to prove beyond a reasonable doubt the

element of ‘lack of consent’ necessary to prove the crime of aggravated

indecent assault. The alleged victim in the instant case testifie[d] that she

does not recall the events of the incident.” Id. at 13-14 (some capitalization

omitted).   Finally, Beach challenges the testimony of the police officer to

whom Beach had confessed the rape, Officer Matthew Painter (“Officer

Painter”), asserting that, at the time Beach gave the confession, he “was

scared and was still under the influence of alcohol ….” Id. at 15.




                                     -4-
J-S75031-17


      It is well settled that “[a] rape victim’s uncorroborated testimony to

pen[ile] penetration is sufficient to establish sexual intercourse and thus

support a rape conviction.”    Commonwealth v. Wall, 953 A.2d 581, 584

(Pa. Super. 2008). Indeed, by statute, the uncorroborated testimony of a

sexual assault victim, if believed, alone is sufficient to support a sex offense

conviction. 18 Pa.C.S.A. § 3106; see also Commonwealth v. Izurieta,

171 A.3d 803, 807 (Pa. Super. 2017) (observing that “[t]he uncorroborated

testimony of a sexual assault victim, if believed by the trier of fact,

is sufficient to convict a defendant.” (citation omitted)). Here, the jury was

well within its province to believe the testimony of the victim, and disbelieve

Beach’s contrary testimony. See Melvin, supra.

      Moreover, there was additional, compelling evidence that could allow

the jury to permissibly find Beach guilty of rape and aggravated indecent

assault. Beach confessed the crime to Officer Painter. Beach’s semen was

found inside of the victim’s vagina. Further, the victim awoke in Beach’s bed

with most of her clothes and her tampon removed.

      Accordingly, the evidence, viewed in the light most favorable to

the Commonwealth as verdict winner, was amply sufficient to support the

jury’s guilty verdicts beyond a reasonable doubt.

      Judgment of sentence affirmed.




                                     -5-
J-S75031-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/26/2018




                          -6-
                                                                               Circulated 01 /02/2018 03:34 PM




              IN THE COURT OF COMMON PLEAS OF FAYETTE COUNTY,
                                PENNSYLVANIA
                                    CRIMINAL DIVISION
COMMONWEALTH OF
PENNSYLVANIA,

        vs.

MIGUEL PA TRICK BEACH,

                Appellant.                               No. 65 of 2016

                        OPINION IN SUPPORT OF JURY VERDICT

VERNON, J.                                                                        August 14, 2017

         Following a trial by jury, Appellant, Miguel Patrick Beach, was found guilty of rape)

and aggravated indecent assault without consent". Appellant was sentenced and the sentenc6

was then amended to a term of incarceration of six to twelve years on the rape conviction at

Count 1 and no further penalty was imposed for the remaining conviction. Appellant has

appealed to the Superior Court and this Opinion is in.support of the jury verdict and sentence

imposed.

          On appeal, the Appellant raises the following issue:

          (1) Was the evidence insufficient [to] find the Appellant guilty beyond a
              reasonable [ doubt] of the criminal charges of rape and aggravated indecent
              assault?

                                 STATEMENT OF THE CASE
                    {C:s)                                                                              \
          M       G · .,a thirty-two year old female, woke only wearing her shirt on the morning

 of January 9, 2016, in the bed of Appellant, her ex-coworker, with Appellant lying beside

 her. N.T., 1/9/17-1/11/17, at 18-21. The evening prior G             was in the Parks Bar drinking

 1
     18 Pa.C.S.A. §3121(a)(3)
 2
     18 Pa.C.S.A. §3125(a)(l)
                                                 - I -


                                                                                                           r; I   ,.-.,   ?. I
beer with her friend, Jamie Umbel, when Appellant, who resides in an apartment above the

bar, joined the women. Id. at 21-23. Appellant invited the two upstairs, and feeling bad for

Appellant, G.      said that she would have one drink upstairs in the apartment. Id. at 25.

Appellant brought an opened beer bottle to G      , and the three took shots of liquor. Id. at 27-:

28. G:       said that she was going to leave to get cigarettes and Appellant insisted that he

would get them for her, leaving the women alone in the apartment, repeating to her to drink

her beer. Id. at 28-29.

         G     was in the apartment with her friend when she started feeling disoriented and

nauseated. Id. at 29. The last thing she remembers is Appellant returning and shaking the

cigarettes at her. Id. at 30. G      woke the morning of January 9, 2016 in Appellant's bed

with no recollection of the previous six hours noting that she was only wearing her shirt and

 specifically that her tampon was removed. Id. at 31. G        returned home when she decided

 to go to Uniontown Hospital on the suspicion that she was raped and underwent the testing of

 a rape kit. Id. at 32. G     responded to all questions from the medical staff with the answer

 that she was "unsure" what had occurred because she was unconscious. Id. at 42-43. G
                                                                                                      '
 relayed that she was a heavy drinker, but on that evening only had a couple beers, and that

 she believed she had been drugged. Id. at 44.

         Jamie Umbel testified that she met G          and Appellant at Parks Casino Bar on the

 evening of January 8, 2016, and that G        was drinking draft beer. Id. at 47-52. Umbel

 confirmed that she and G.      went upstairs to Appellant's apartment where he served drinks, a

 beer to G      , and then left to get cigarettes. Id. at 52-55. Umbel and G       remained in the

 apartment talking and within minutes of finishing her beer, Umbel sat on Appellant's bed in

 the efficiency apartment looking very sleepy. Id. at 55-56. Appellant returned and G           was

                                                 -2-
fully dressed lying on Appellant's bed. Id. at 56. Appellant and Umbel began conversinl

when Umbel realized G         was unconscious. Id. Umbel slapped G:            across the face, put he

fingers in G    's nostrils, and kept repeating, "M           ., let's go."     Id. Umbel explained

"there's no way that we were just having a conversation and speaking, [G · � takes a coupl

sips of this beer and she's comatose, like she's not responding to me." Id. at 58. Umbel

described that she continued to slap G        and that she did not respond. Id. at 59. Umbel wa

not physically strong enough to move G            and asked Appellant for assistance to which h

responded that G     was fine, that she had a hard day, that she had a lot going on in her life

and that she was okay. Id. Umbel tried for a half hour to wake G              with Appellant repeatin

that she was okay. Id. at 59-60. Appellant "tucked in" G                by pulling the covers over he

and then reassured Umbel that she was safe and okay. Id. at 61. Umbel then left G                        a

Appellant's apartment on his bed, fully clothed wearing black leggings and long sweater type

shirt.   Id. at 60-61.    G     called Umbel about 7:30 the next morning with an hysterica

 demeanor. Id. at 62.

         Ashley Hugland, a Registered Nurse at Uniontown Hospital, was recognized by th

 Court as an expert certified to administer a rape kit, and was on duty the evening of Janua
                                                                                                             ]
 9, 2016, when G         arrived at the hospi ta!. Id. at 6 8- 72. G.     had Ii tt! e recollection of thl

 events that occurred the evening prior with Appellant, but noted that her tampon was

 removed through that night so she believed that she had vaginal intercourse. Id. at 74. G                   I
 stated that Appellant had given her a beer with the cap already off and that she had                    no
 recollection after drinking the beer. Id. at 78.

         Officer Matthew Painter of the Uniontown Police Department responded to th

 Uniontown Hospital on the suspected rape of G               met with G        , and requested a searc

                                                    -3 -
warrant based on the information that she provided. Id. at 99-102. Officer Painter execute

the search warrant at Appellant's residence where he removed G            's coat, a bottle o

Naproxen pills, and sheets from Appellant's bed.        Id. at 103.   Officer Painter advise

Appellant that he was not under arrest and asked if he would speak about the night prior an

asked Appellant what happened. Id. at 104. Appellant stated that after Umbel had left, h

removed G     's clothes and began to have inappropriate contact with her while she wa

sleeping, that he removed her tampon, and had vaginal intercourse by inserting his penis i

G     while she was not awake. Id. at 105.    Appellant stated that he did not use protection

and that he only had sex for a few seconds before he realized how wrong it was and h

stopped. Id. at 106-107.

       Following his voluntary statement, Appellant was transported to the Uniontown Cit

Police Department and read his Miranda warnings where he provided Officer Painter with

written statement. Id. at 108-112. In the written statement, Appellant admitted that he lai

next to G:   on the bed, took her clothes off, and tried to have sex with her when he stoppe

and told himself that it was wrong. Id. at 112. Appellant wrote that he "felt so bad about it. '

Id.

        Zachary Tanczos was recognized as an expert as a forensic scientist in the field o

DNA evaluation and testing who testified that he tested samples swabbed from G _'s perso

against a single profile provided to him of Appellant's DNA and gave the opinion th

neither Appellant nor his paternally related male relatives could be excluded as th

contributor of the DNA found in the vaginal swab from G        Id. at 86-94.




                                              -4-
       With the above principles in mind, we now consider whether the Commonwealth

presented sufficient evidence to sustain Appellant's convictions of rape and aggravated

indecent assault without consent.

       Viewed under the aforementioned standard, and with this law to guide us, we find

Appellant's challenge to the sufficiency of the evidence frivolous. A review of the record

reveals evidence, sufficient in kind and quality, presented at trial, such that the trier of fact

permissibly concluded that Appellant committed the offenses when M                     G      was

unconscious on his bed, that G      's tampon and clothing had been removed, that Appellant's

DNA was located inside G       "s vagina, and by also, Appellant's admission to Officer Painter

of the Uniontown Police Department. The evidence presented, again as believed by the trier

of fact, establishes that the jury found credible the testimony of M         G.   , Jamie Umbel,

the expert witnesses, and the policemen and rejected the testimony offered by Appellant.

 Wherefore, it is respectfully submitted that the entire appeal is without merit and should be

 denied.


                                                      BY THE COURT:


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