J-S09041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                             Appellee

                        v.

SHAWN MATTHEW BECHTEL

                             Appellant                   No. 1260 MDA 2015


            Appeal from the Judgment of Sentence March 17, 2015
              In the Court of Common Pleas of Lebanon County
             Criminal Division at No(s): CP-38-CR-0000376-2014


BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                          FILED FEBRUARY 02, 2016

       Shawn Bechtel files this timely direct appeal1 from his aggregate

sentence    of   3-10    years’    imprisonment   for   statutory   sexual   assault,

aggravated indecent assault, indecent assault and corruption of minors.2 We

affirm.

       Bechtel raises two issues in this appeal:

       1. Whether there was insufficient evidence to support the jury’s
       verdict as to statutory sexual assault as the Commonwealth
       failed to establish [Bechtel] did cause his penis to penetrate the
       genitals of [the victim, E.H.]?
____________________________________________


1
 The trial court imposed sentence on March 17, 2015. On March 26, 2015,
Bechtel filed timely post-sentence motions. On July 15, 2015, the court
denied Bechtel’s motions. On July 22, 2015, Bechtel filed a timely notice of
appeal. Both Bechtel and the trial court complied with Pa.R.A.P. 1925.
2
  18 Pa.C.S. §§ 3122.1(b), 3125(a)(8), 3126(a)(8) and 6301(a)(1)(i),
respectively.
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      2. Whether the verdict was against the weight of the evidence as
      to the charges of statutory sexual assault and aggravated
      indecent assault where the victim was uncertain [Bechtel]’s
      penis penetrated her vagina and the victim had provided
      numerous inconsistent accounts regarding [Bechtel] placing his
      fingers inside of her vagina?

Brief For Appellant, at 4.

      When examining a challenge to the sufficiency of evidence, the

standard we apply 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 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. 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. Hansley, 24 A.3d 410, 416 (Pa.Super.2011).

      The following evidence was adduced during trial:

      [T]he victim, E.H., explained that [Bechtel] was her stepfather.
      She testified that her date of birth was July 7, 1999, and that
      she had never been married. At the time of trial, she was in
      tenth grade and was living with her aunt in Manheim. E.H.
      explained that she had been living with [Bechtel], her mother,
      and her two younger half-brothers at the family’s home … in
      Palmyra when the incidents underlying these charges occurred.

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       E.H. had been having digestive issues when she was thirteen
       and fourteen years old for which her doctor had prescribed stool
       softeners. Around that time, [Bechtel] began to examine her
       naked buttocks for the purported purpose of ensuring her
       cleanliness. After this occurred a few times, E.H. told her
       mother. After E.H.’s mother spoke to [Bechtel], he stopped
       checking her for a period of time.

       Around the beginning of the 2014 school year, [Bechtel] began
       to check E.H. again. On numerous occasions, he instructed E.H.
       to go into her parents’ bedroom, take off her pants and
       underwear and bend over the bed so that he could see whether
       her buttocks were clean. He would then have her lay on the
       edge of the bed and spread her legs so that he could check to
       see that her pubic area and legs were clean-shaven. He would
       run his hands over her skin and insert his finger into her vagina.
       He also touched her breasts on top of her skin. [Bechtel]
       engaged in this conduct only when E.H.’s mother was out of the
       home working. [Bechtel] told E.H. not to tell anyone. During
       this time period, [Bechtel] also took numerous pictures of E.H.
       posing in various positions in various stages of undress, some
       when she was completely nude.

       On January 1, 2014, E.H.’s mother was at work. One of E.H.’s
       brothers was napping and the other was playing video games in
       another room. [Bechtel] instructed E.H. to go into her parents’
       bedroom. He had her take off her pants, underwear and shirt
       and bend over the bed. Afterward, he had her lay face-up on
       the bed. He touched her vagina and inserted his finger into her
       vagina. [Bechtel] then laid down beside E.H. He was wearing
       elastic-waist pajama shorts. E.H. explained that she ‘ended up
       on top of him’ front-wise and that [Bechtel] had her put her
       head over his shoulder. (N.T. at 8) He then pulled down his
       shorts3 and went to stick his penis inside her. [Bechtel] was
       grinding his penis on her vaginal area. She then ‘felt like a little
       bit of like the tip of his penis go inside of me.’ (N.T. at 12) She
       noted that this lasted only a short time and that she did not
       actually see [Bechtel]’s penis. She thought that [Bechtel] had
       ejaculated because she felt wetness around his shorts. At that
____________________________________________


       3
           E.H. felt [Bechtel’s] shorts go down her legs.




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     point, the doorbell rang. [Bechtel] got up and left. E.H. got
     dressed and went into the living room where [Bechtel] was with
     her two brothers and her grandparents. Prior to this incident,
     E.H. had confided episodes of [Bechtel]’s previous ‘inspections’
     to a friend during Christmas break. When school reopened on
     January 2, 2014, her friend reported this information to the
     school guidance counselor. When questioned by the school
     nurse, Marjorie Ober, E.H. finally related this information to her.

     On cross-examination, E.H. acknowledged that she had been
     experiencing problems with hygiene and that her mother had
     discussed the subject with her. [Bechtel] also began to discuss
     grooming of her vaginal area with her. Upon questioning by
     defense counsel, she stated that she was not certain whether or
     not [Bechtel]’s penis actually went into her vagina, and that he
     ‘may have put’ his penis into her vagina. She admitted that she
     had not actually seen [Bechtel]’s penis or the wet spot on his
     shorts. She explained that she could feel that [Bechtel]’s shorts
     were wet when he pulled them up before he left to answer the
     door.

     The Commonwealth also presented the testimony of Marjorie
     Ober, Detective Matt Brindley, and Dr. Paula George (the
     medical director of the Children’s Resource Center of Clinical
     Health in Harrisburg). These witnesses testified as to the
     accounts of [Bechtel]’s conduct which [were] given to them by
     E.H.

     Detective Brindley recounted that he had met with E.H. on
     January 2, 2014. In describing the January 1, 2014 incident,
     E.H. had stated that [Bechtel]’s penis went inside her vagina a
     little bit, that it had hurt her, and that she felt wet. She also
     told Detective Brindley about the photographs. After meeting
     with E.H., he had gone to the family home and retrieved an SD
     camera card from which he obtained thirty-seven (37) pictures
     of E.H. (Exhibit 34)       Detective Brindley also described an
     interview he had conducted with [Bechtel] on January 7, 2014.
     During that interview, [Bechtel] admitted that he had been
     checking E.H., but insisted that he was doing so due to her
     hygienic problems. He initially denied taking the pictures, but
     then admitted that he had taken them after he was informed
     that they had been recovered. With regard to January 1, 2014,
     he admitted that he had E.H. get naked, had rubbed her breasts
     and that they had ended up in his bed. He insisted, however,

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     that he only touched the top of her vagina and that he had
     remained clothed. He admitted that he had kissed E.H. on the
     neck and that he was aroused, had an erection, and had some
     pre-ejaculate from his penis. He further insisted that when E.H.
     asked him to stop, he did so immediately. He claimed that he
     never penetrated E.H.’s vagina with either his fingers or his
     penis. [Bechtel] stated to Detective Brindley that he was sorry
     for his actions and that he had let his family down.

     At trial, E.H.’s mother also testified. She indicated that E.H.’s
     date of birth was July 17, 1999 and identified her as the person
     in the pictures which were developed from the SD card from
     their home. She testified that she had never asked [Bechtel] to
     check E.H.’s buttocks or vaginal area to make sure that she was
     clean and shaven.

     The defense presented the testimony of Evelyn Lopez, a child
     protective caseworker with Lebanon County Children and Youth
     Services.   Lopez had interviewed E.H. along with Detective
     Brindley on January 2, 2014. She was also present to observe
     an interview with E.H. at the Children’s Resource Center on
     January 3, 2014. Lopez indicated that E.H. had reported that
     [Bechtel] and placed his finger(s) inside of her vagina and that
     he ‘may have put his penis inside of her.’ (N.T. at 131) Lopez
     recalled that E.H. stated that ‘she felt as though his penis went
     into her vagina.’ (N.T. at 133) Lopez’s report also indicated that
     E.H. had told her that [Bechtel] had placed his hands down her
     pants and massaged her vaginal area.

     [Bechtel] also testified at the jury trial. [Bechtel] indicated that
     he was thirty-five years of age at the time of trial and that E.H.
     was his stepdaughter. He explained that beginning in seventh
     grade, E.H. had begun experiencing digestive problems for which
     the doctor had prescribed a stool softener.          Due to E.H.’s
     problems with proper hygiene, her school had notified [Bechtel]
     and his wife that she sometimes had an odor and would be sent
     home from school in the future if the problem continued.
     [Bechtel] and his wife addressed the hygiene issue with E.H. and
     they began to make sure that she cleaned herself properly and
     shaved her armpits and legs. He insisted that he and his wife
     checked E.H. on a regular basis and that he would only inspect
     her on his own if he detected an odor while his wife was at work.
     He insisted that he never touched her during these checks.


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      [Bechtel] admitted that he had taken pictures of E.H. but
      insisted that prior to January 1, 2014, he had never had physical
      contact with her. He explained that on that date, he had E.H. go
      into his bedroom and she took off her pants and underwear. He
      claimed that previously, he only had her pull her pants down but
      that she removed them of her own accord on that day because
      her pants were too tight. He admitted that he asked her to take
      off her top. He kissed E.H. on the neck and she sat on the edge
      of the bed. He motioned her to slide back on the bed and he
      then laid down beside her. He admitted that he touched and
      moved his hand around her breasts, and then ran his hand down
      her stomach to her vaginal area. He claimed that he had moved
      his hands around on her breasts, but not on her genitals. He
      further admitted that he was aroused and had an erection. At
      that point, E.H. asked him to stop and he did so. As she went to
      get off the bed, she straddled him and then sat down on his
      crotch. It was painful when E.H. sat down on him and he lost his
      erection. He claimed that he pulled her down on him because of
      the pain. He also claimed that E.H. leaned over to hug him and
      her body shifted his pants down. He insisted that his penis
      never became exposed from inside his shorts.           He further
      insisted that he did not penetrate E.H.’s vagina with his finger or
      his penis.

Trial Court Opinion, at 2-8.

      An individual is guilty of statutory sexual assault, graded as a first

degree felony, if he “engages in sexual intercourse with a complainant under

the age of 16 years and that person is 11 or more years older than the

complainant and the complainant and the person are not married to each

other.” 18 Pa.C.S. § 3122.1 (b). The act of sexual intercourse requires only

“some penetration, however slight.” 18 Pa.C.S. § 3101. Penetration need

not reach the vagina or farther reaches of female genitalia. In Re A.D., 771

A.2d 45, 49 (Pa.Super.2001).        Penetration of the labia is sufficient.

Commonwealth v. Hunzer, 868 A.2d 498, 506 (Pa.Super.2005).                  The


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uncorroborated testimony of a sexual assault victim, if believed, can itself

form the basis for a guilty verdict.    Commonwealth v. McDonough, 96

A.3d 1067, 1069 (Pa.Super.2014).

      The evidence establishes that at the time of the incident, E.H. was 14

years old, and Bechtel was either 34 or 35 years old.       Thus, Bechtel was

more than eleven years older than E.H. E.H. and Bechtel were not married

to each other. E.H. testified that on January 1, 2014, Bechtel inserted his

penis into her vagina: “I felt like a little bit of like the tip of his penis go

inside of me.”     N.T., 10/8/14, at 12.     This evidence was sufficient to

establish the crime of statutory sexual assault beyond a reasonable doubt.

      Bechtel argues that there was insufficient evidence of statutory sexual

assault due to contradictions in E.H.’s testimony.    The trial court analyzed

this issue as follows:

      Viewing all the evidence presented at trial, we find that there
      was ample testimony upon which the jury could have based a
      determination that [Bechtel] did, in fact, penetrate E.H.’s vagina
      with some portion of his penis. When viewed in its entirety, the
      trial excerpt cited by [Bechtel] indicates that she did not actually
      disavow her prior testimony on this matter. On redirect, E.H.
      testified as follows:

      Q: Now, ... you said you weren’t certain whether or not his penis
      went inside of your vaginal area so let’s talk about that day on
      January 1st of 2014. You had previously told us ... that you
      were on top of him and that you had your head over his one
      shoulder. What were you able to feel?
      A: I was able to feel just my skin on his penis and his penis on
      my vagina.
      Q: How was he moving it around?
      A: He was moving up and down like a grinding motion.


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      …

      Q: Now, you would agree with me that your vaginal area, there’s
      some entryway that you would use to go to the bathroom, am I
      correct?
      A: Yes.
      Q: Did any part of his penis touch that area?
      A: I don’t think so.
      Q: When he was grinding or moving his penis around, was that
      on your vaginal area or was that some other part of your body?
      A: It was on my vaginal area.

      (N.T. at 50-51)

      We do not view this testimony as a contradiction of E.H.’s
      assertion that the tip of [Bechtel]’s penis penetrated her vagina
      when it is considered in the context of the entire questioning.
      On cross-examination, when E.H. was asked whether she was
      certain that her stepfather’s penis actually went into her vagina,
      she did respond ‘no.’ (N.T. at 41) However, the word ‘into’ was
      not defined for E.H. and she was not questioned as to her
      interpretation of that term. It is certainly possible that she
      assumed she was being asked whether his penis went all the
      way inside of her vagina. For sexual intercourse to occur, all that
      is necessary is a penetration of the victim’s genitals; penetration
      of the labia is sufficient … She had already testified that she felt
      like it only went in a little and also that she felt [Bechtel] moving
      his penis ‘up and down like a grinding motion’ on her vagina.
      (N.T. at 50) …

      [Moreover, Bechtel] had previously stuck his finger in [E.H.’s]
      vagina on numerous occasions and [E.H.] would have been able
      to tell that this time felt different.

Trial Court Opinion, at 12-14, 17.       We agree with the trial court that the

minor inconsistencies in E.H.’s testimony do not render the evidence of

statutory sexual assault insufficient.

      In his second argument on appeal, Bechtel argues that the verdicts on

the charges of statutory sexual assault and aggravated indecent assault


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were against the weight of the evidence, because E.H. was uncertain that

Bechtel’s penis penetrated her vagina, and E.H. had provided numerous

inconsistent accounts regarding Bechtel placing his fingers inside of her

vagina. We disagree.

      The law pertaining to weight of the evidence claims is well-settled:

      The weight of the evidence is a matter 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. A new trial is
      not warranted because of a mere conflict in the testimony and
      must have a stronger foundation than a reassessment of the
      credibility of witnesses. 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. On appeal, our
      purview is extremely limited and is confined to whether the trial
      court abused its discretion in finding that the jury verdict did not
      shock its conscience. Thus, appellate review of a weight claim
      consists of a review of the trial court’s exercise of discretion, not
      a review of the underlying question of whether the verdict is
      against the weight of the evidence. An appellate court may not
      reverse a verdict unless it is so contrary to the evidence as to
      shock one’s sense of justice.

Commonwealth v. Gonzalez,            109    A.3d   711,   723   (Pa.Super.2015)

(citations omitted).

      We concluded above that any minor discrepancies in E.H.’s testimony

did not render the evidence of statutory sexual assault insufficient as a

matter of law.     Similarly, any discrepancies in her testimony do not

demonstrate that the evidence should have shocked the trial court’s

conscience. As the trial court reasoned:

      E.H.’s credibility was within the province of the jury and any
      possible conflict in her testimony was for their resolution. This

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      was a young girl who had been subject to inappropriate conduct
      on the part of her stepfather for an extended period of time. She
      was participating in interviews and physical examinations which
      were being conducted by numerous unfamiliar individuals who
      were conducting an official investigation of a sensitive issue. Her
      uncertainties were reasonable for someone of her age,
      experience and maturity level. Although she may have been
      confused due to her age and sexual inexperience, she was able
      to describe in detail what she felt with her vagina when she was
      on top of [Bechtel]. She testified that [Bechtel] had previously
      inserted his finger in her vagina on prior occasions and that,
      instead, this felt like his penis. She could also determine that
      what she felt was [Bechtel]’s penis by the position of their
      bodies.

Trial Court Opinion, at 13. The trial court properly exercised its discretion in

denying Bechtel’s challenge to the weight of the evidence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/2016




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