J-S78026-14


                                   2015 PA Super 13

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

DAVID JOSEPH GONZALEZ

                            Appellant                    No. 448 MDA 2014


           Appeal from the Judgment of Sentence December 18, 2013
               In the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0001103-2011


BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

OPINION BY JENKINS, J.:                               FILED JANUARY 21, 2015

        David Gonzalez met K.M., a cerebral palsy patient,1 on a Christian

dating website. On March 8, 2011, after dating for several months, they had

sexual intercourse. K.M. claimed that Gonzalez raped her; Gonzalez claimed

that she consented to intercourse.             The jury believed K.M. and found

Gonzalez guilty of rape,2 aggravated indecent assault3 and sexual assault.4

The trial court sentenced Gonzalez to an aggregate sentence of 4-15 years’

imprisonment. Gonzalez filed a motion for post-trial relief and timely post-

____________________________________________


1
    We will refer to K.M. either as “K.M.” or “the victim”.
2
    18 Pa.C.S. § 3121.
3
    18 Pa.C.S. § 3125.
4
    18 Pa.C.S. § 3124.1.
J-S78026-14



sentence motions, all of which the trial court denied, and then a timely

notice of appeal. Both Gonzalez and the trial court complied with Pa.R.A.P.

1925. For the reasons articulated below, we affirm.

     Gonzalez raises six issues in this direct appeal:

           I. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE
           VERDICTS OF GUILT AS TO THE CRIMES OF RAPE,
           AGGRAVATED INDECENT ASSAULT AND SEXUAL
           ASSAULT[,] AS THE COMMONWEALTH FAILED TO
           PROVE     [GONZALEZ’S]    GUILT    BEYOND    A
           REASONABLE DOUBT.

           II. THE VERDICTS OF GUILT AS TO THE CRIMES OF
           RAPE, AGGRAVATED INDECENT ASSAULT AND
           SEXUAL ASSAULT ARE AGAINST THE WEIGHT OF
           THE EVIDENCE.

           III. THE PRETRIAL COURT ERRED WHEN IT DENIED
           A MOTION IN LIMINE TO PRECLUDE THE
           INTRODUCTION OF THE AUDIO TAPE OF [K.M.’S]
           STATEMENT.

           IV. THE PRETRIAL COURT ERRED WHEN IT BARRED
           TESTIMONY CONCERNING THE MENTAL HEALTH
           DIAGNOSES OF [K.M.]

           V. THE TRIAL COURT ERRED WHEN IT ALLOWED THE
           COMMONWEALTH TO READ THE CONTENTS OF
           [K.M.’S] PRELIMINARY HEARING TESTIMONY.

           VI. THE SENTENCES IMPOSED ARE UNREASONABLE,
           EXCESSIVE AND NOT REFLECTIVE OF [GONZALEZ’S]
           CHARACTER, HISTORY AND CONDITION.

     Gonzalez’s first argument is a challenge to the sufficiency of the

evidence. Our standard of review for such challenges is well-settled:

           [W]hether[,] viewing all the evidence admitted at
           trial in   the   light most    favorable to   the
           [Commonwealth as the] verdict winner, there is

                                    -2-
J-S78026-14


              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. Troy, 832 A.2d 1089, 1092 (Pa.Super.2003) (citations

omitted).

       The trial court recounts the evidence adduced at trial as follows:5

              The above convictions arose out of an incident that
              occurred on March 8, 2011. The victim was twenty-
              five years old at the time and suffers from cerebral
              palsy.     Her cerebral palsy causes her to have
              ‘stiffness and tightening of the muscles’ in her legs
              and she needs crutches to walk. She testified that if
              she were lying on the floor, she could pull herself up
              if she had something to pull herself up on. When
              asked whether she could bend her knees normally,
              she testified ‘[n]ot on my own. If I had to bend my
              knees, I would either need to use my hands or have
              someone to help me.’ When asked if she could
              easily spread her legs apart, she responded, ‘[n]o,’
              and said ‘[t]hey have to be pushed apart.’ The
              victim also testified that ‘I can't spread my legs far


____________________________________________


5
  The narrative in the trial court opinion has 73 citations to the record. For
convenience, we group these citations into footnotes 6-14 below.



                                           -3-
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              enough to get [a tampon] in,’ and has to use pads
              during her period.6

              The victim and [Gonzalez] met each other on a
              Christian dating website in August 2010. They met in
              person in September of that year, but [Gonzalez]
              soon left the area to pursue a position as a youth
              minister in New York. They reestablished a
              relationship when he returned in December 2010,
              and began seeing each other. On March 7, 2011,
              [Gonzalez] picked up the victim and took her to the
              mall. They discussed their religious beliefs, and the
              victim testified that ‘I had told [Gonzalez] that I was
              a virgin and didn’t plan on having sex before I was
              married.’ She further testified that he responded by
              saying ‘something along the lines. . .of praise the
              Lord.’ She also said that he told her he was not a
              virgin. That evening, they kissed and hugged. The
              victim also testified that [Gonzalez] asked her to be
              his girlfriend, and she agreed7.

              On March 8, 2011, [Gonzalez] picked up the victim
              from her physical therapy appointment around 2:30
              p.m. They stopped to get food and went to
              [Gonzalez]’s apartment to watch a movie. This was
              the first time the victim had been to [Gonzalez]’s
              apartment. They sat down on the couch and began
              watching the movie. The victim testified that she
              started kissing [Gonzalez] and they both began
              touching and rubbing one another’s genitals over
              their clothes. This lasted for about half an hour.
              Eventually, the victim noticed that [Gonzalez] was
              erect. Next, the victim testified that [Gonzalez]
              asked her if she wanted to go to the bedroom, to
              which she agreed. The victim ‘assumed that we
              would continue doing what we were doing in the
              living room in the bedroom. . .[b]ecause . . .
              [Gonzalez] knew that I didn’t want to have sex
____________________________________________


6
    N.T., 9/3/13, pp. 58-62, 77.
7
    N.T., 9/3/13, pp. 64-71.



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J-S78026-14


              before I was married.’ Before they moved, the
              victim testified that [Gonzalez] took her phone out of
              a pouch connected to her jeans and placed it on a TV
              tray in the living room. The victim then got her
              crutches, got off the couch, and walked to
              [Gonzalez]’s bedroom. Once in the bedroom, she
              noticed a bare mattress against the wall with no
              furniture surrounding it. [Gonzalez] then either
              helped her sit on the mattress or she sat down
              herself. The victim testified that [Gonzalez] ‘took my
              crutches [and] put them out of reach. I didn’t see
              exactly where he put them. But I know it was out of
              reach.’ The victim lay down by herself. When asked
              ‘is there any way you could have gotten up from that
              point?’ She responded ‘no.’8

              The victim testified that [Gonzalez] then removed
              her jeans and underwear, and lay on top of her. The
              victim did not say anything while [Gonzalez] took off
              her pants and underwear, but when he lay on top of
              her, she said ‘no, don’t.’ When he lay on top of her,
              her legs were flat, straight, and unopened because ‘I
              can’t open my legs by myself.’ 9

              Next, the victim testified that [Gonzalez] got on his
              knees and forced her legs apart ‘with his hands and
              put them on his shoulders. And he had his hands
              cuffed around my ankles.’ She testified that ‘[h]e put
              my ankles around his shoulders.’ ‘He bent [her
              knees] because they were up on his shoulders.’ She
              then felt his penis inside her, and she ‘kept saying
              ow.’ [Gonzalez] told the victim she ‘had to be quiet.’
              The victim testified that at some point [Gonzalez]
              took her legs off his shoulders and put his finger in
              her vagina. He then put her legs back on his
              shoulders and penetrated her again with his penis.
              The victim was asked if she tried at all to kick off
              [Gonzalez] during the penetration. She responded, ‘I
____________________________________________


8
    N.T., 9/3/13, pp. 71-79, 120-122, 132-134, 162.
9
    N.T., 9/3/13, pp. 79-82, 123.



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J-S78026-14


              couldn’t move my legs. My legs don’t move like that.’
              When asked if she tried to push him off, she said,
              ‘[n]o. . . because he’s too big. And I was scared.’10

              When asked how the penetration felt, the victim
              responded, ‘It felt like someone was mutilating me
              with a sharp object.’ At some point, [Gonzalez]
              suddenly stopped, and the encounter ended. There
              was blood on the mattress and blood on the victim’s
              underwear after she put them back on. The victim
              testified that after she got dressed, [Gonzalez] said
              to her, ‘I’m sorry. I have a weakness.’11

              During cross-examination, defense counsel inquired
              into the victim’s mobility. The victim attended
              Lancaster Bible College and when asked if she could
              walk around the campus independently, she
              responded, ‘with crutches, yes.’ The victim later
              testified on redirect that she has ‘people to help me
              carry’ books and things, and she needs assistance to
              open doors. Defense counsel further inquired into
              the victim’s relationship with [Gonzalez], asking her
              about a Facebook post she had made on March 7,
              2011 which read, ‘I went out with an awesome guy
              tonight. I have known him since August. We’ve
              chatted off and on for months. And he officially
              asked me to be his girlfriend this evening. We are
              going out again tomorrow. And I’m in like with
              David Gonzalez.’ Furthermore, when asked if she
              had any bruises from the incident the victim
              responded: ‘No, I don’t think I did.’ The victim also
              testified that [Gonzalez] did not hit, kick, grab, push,
              gag, or punch her or use his fists or a weapon.
              Defense counsel asked why the victim and
              [Gonzalez] moved to the bedroom when they were
              already making out in the living room. The victim
              responded, ‘there was no purpose. I didn’t think I
              was in any danger with David. I saw him - I thought
____________________________________________


10
     N.T., 9/3/13, pp. 82-84, 125.
11
     N.T., 9/3/13, pp. 84-85, 88, 94, 133.



                                           -6-
J-S78026-14


              he was an honest person.’ Defense counsel asked,
              ‘So for the record, it never crossed your mind that at
              that point, you were moving to the bedroom for sex.
              It never crossed your mind?’ The victim responded,
              ‘No, ma’am.’12

              Alternatively, [Gonzalez] testified that the encounter
              was consensual. He said that when he and the victim
              went out on March 7, 2011 and he confessed he was
              not a virgin, she told him she was not a virgin either,
              and was not proud of that fact. On the day of the
              incident, March 8, 2011, [Gonzalez] agreed that
              while they were in the living room, [the victim]
              started kissing him and he kissed her back. He also
              agreed that they both started touching each other
              intimately over their clothes, and then he ‘asked [the
              victim] if she wanted to go to the bedroom. She
              agreed. [The victim] got up, and she went first. I
              went behind [the victim]. I followed after her. Then
              we went into the bedroom together.’ [Gonzalez]
              testified about the events in the bedroom in the form
              of a narrative:

                     We were kissing each other. . . . We stood --
                     we were kissing. [The victim] was still fondling
                     my penis. . . [The victim] then sat down on the
                     bed. [The victim] then asked me to take my
                     pants off. She asked me — she leaned back.
                     And she asked me to help her with her jeans.
                     She also [asked] with her motions, as well as
                     asking me verbally, to help her with her pants.
                     I did that and her panties. [The victim] laid
                     her canes on the other side of the bed flat on
                     the bed. And so I asked [the victim] if I can—
                     well, l was going to lay next to [the victim].
                     [The victim] was on one side of the bed [and]
                     the canes were on the other side of the bed. I
                     asked [the victim] if I can move the canes
                     towards the right or the left. [The victim] said
                     fine. I laid next to [the victim]. And we were
____________________________________________


12
     N.T., 9/3/13, pp. 100, 108, 158-163.



                                           -7-
J-S78026-14


              kissing. [The victim], we were laying next to
              each other. We were kissing. [The victim] was
              still fondling me. [The victim] then asked me if
              I could rub my penis against her vagina. And I
              did that. While I was doing that, I was kind
              of—went on the side. I was basically with my
              hand trying to rub my penis against her
              vagina.      After that, I moved over kind of
              almost on top of her. I started grinding. I
              started rubbing my penis without my hands.
              Before I was—before I did that, I did touch
              [the victim] with my finger while I was
              rubbing. [The victim] got - she got aroused.
              She started saying my name. And I asked her
              if she was okay. She said she was fine. After I
              was on top of [the victim], [the victim] asked
              me to spread her legs a little bit. That’s what I
              did. And I was rubbing my penis without my
              hands on her vagina. After that, I then asked
              [the victim] if I could penetrate her. . .the
              word I used, can I come inside you. [The
              victim] said yes. I slightly penetrated [the
              victim] with my penis. [The victim], again she
              got very aroused, she started saying my name
              again loudly. And while I paused and I said,
              are you okay? While I said that, at the same
              time, [the victim] said, l’m tight. I’m tight,
              don’t stop, don’t stop, come into me slowly. I
              took her direction. I started coming into her
              slowly with my penis. I penetrated her at least
              three or four times, no more than four and
              deeper than the first time. I knew what we
              were doing with—[the victim] and I were doing
              was wrong. I smelled blood. Well, I smelled an
              odd smell, I noticed the blood. When I noticed
              the blood, I took it as it was an opportunity to
              stop. And that’s what I did. I stopped. I
              thought it was the Lord giving me an
              opportunity to stop because I didn’t want to
              continue what we were doing. In my heart,
              that’s not what I wanted to do even though I
              was doing it, what we were doing. So I
              stopped. I told [the victim] I think we need to
              stop. [The victim] got a little shy. She got a

                                 -8-
J-S78026-14


                     little embarrassed. She sat up, she noticed the
                     blood. And she got quiet.13

              [Gonzalez] denied ever putting the victim’s legs on
              his shoulders, or having his hands around her
              ankles. He also denied ever apologizing to the victim
              or admitting that he had a ‘weakness.’ He testified
              further that she never said ‘no, don’t.’ He said:

                     The whole time we were in the bedroom, [the
                     victim] was giving me direction to what to do. I
                     was following her—after her direction. She
                     told me to take her pants off. She told me
                     to...rub my penis against her vagina. [The
                     victim] was the one that told me not to stop.
                     She gave me direction, instruction, you know,
                     to come into her slowly. That’s exactly what I
                     did.14

Trial Court Pa.R.A.P. 1925(a) Opinion (“Opinion”), pp. 6-12.

        The trial court provides an accurate account of K.M.’s and Gonzalez’s

testimony, but there is additional relevant evidence that the trial court does

not mention.        After concluding sexual intercourse, K.M. and Gonzalez

returned to the living room to continue watching the movie.             Gonzalez

indicated that his cousin was coming over to visit, and K.M. asked him to

take her home. Gonzalez assisted her, and she stood outside while Gonzalez

went to get his car. Although the police station was across the street, K.M.

did not make any telephone calls or attempt to go to the police station to

report the incident. Gonzalez helped K.M. into the car, and they stopped at
____________________________________________


13
     N.T., 9/4/13, pp. 151, 157-160, 187.
14
     N.T., 9/4/13, pp. 180-183.



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a gas station en route to her house. She did not use her cell phone at the

gas station or report the incident to anyone.      Upon arriving at her home,

Gonzalez helped her get out of the car.15

        After K.M. entered her house, her sister asked her whether something

was wrong.      K.M. did not state that Gonzalez had assaulted her.      K.M.’s

mother questioned her. K.M. initially denied that anything was wrong but

then stated: “I think he raped me.”16

        K.M. was taken to the hospital and eventually was interviewed by the

police. A hospital nurse testified that she interviewed and examined K.M. at

the hospital. The nurse’s notes state: “He laid me back on the bed. And he

went in. I said no.” K.M. also stated that after the sexual encounter, she

returned to the couch and continued to watch the movie. She also indicated

that Gonzalez did not use any physical or verbal coercion during the

encounter, and K.M. did not sustain any bruising or injury. There was blood

on K.M.’s underwear. The nurse began but could not complete a full internal

examination, because K.M. felt uncomfortable. K.M. was discharged from the

hospital without any determination of the cause of her bleeding.17



____________________________________________


15
     N.T., 9/3/13, pp. 89-91, 137, 145.
16
     N.T., 9/3/13, pp. 92-93, 147-49.
17
     N.T., 9/3/13, pp. 18, 21-22, 31, 40, 223, 230, 236, 238-239, 251.



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       Each party presented expert testimony on the cause of K.M.’s

bleeding.     The Commonwealth’s expert testified that the blood on her

underwear was not menstrual in nature. Gonzalez’s expert testified that the

blood was menstrual in nature.18

       Gonzalez’ first argument on appeal is a challenge to the sufficiency of

the evidence.      We first consider the evidence of rape.      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. . .by forcible compulsion.”           18 Pa.C.S. § 3121(a)(1).   The

Crimes Code defines “forcible compulsion” in relevant part as “compulsion by

use of physical, intellectual, moral, emotional or psychological force, either

express or implied.” 18 Pa.C.S. § 3101. This Court has observed “forcible

compulsion” as the exercise of sheer physical force or violence and has also

come to mean an act of using superior force, physical, moral, psychological

or intellectual to compel a person to do a thing against that person’s volition

and/or will. Commonwealth v. Ables, 590 A.2d 334, 337 (Pa.Super.1991).

A determination of forcible compulsion rests on the totality of the

circumstances, including but not limited to this list of factors:

              the respective ages of the victim and the accused,
              the respective mental and physical conditions of the
              victim and the accused, the atmosphere and physical
____________________________________________


18
  N.T., 9/4/2013 pp. 4-48 (Commonwealth’s expert); N.T., 9/5/2013 pp. 4-
63 (Gonzalez’s expert).



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            setting in which the incident was alleged to have
            taken place, the extent to which the accused may
            have been in a position of authority, domination or
            custodial control over the victim, and whether the
            victim was under duress.

Commonwealth v. Rhodes, 510 A.2d 1217, 1226 (Pa.1986) (emphasis

added). It is not mandatory to show that the victim resisted the assault in

order to prove forcible compulsion.          Id.      The victim’s uncorroborated

testimony is sufficient to support a rape conviction.             Commonwealth v.

Wall, 953 A.2d 581, 584 (Pa.Super.2009).

      The distinction between forcible compulsion and lack of consent is

important to remember. With regard to consent, the Crimes Code states:

“The consent of the victim to conduct charged to constitute an offense or to

the result thereof is a defense if such consent negatives an element of the

offense or precludes the infliction of the harm or evil sought to be prevented

by the law defining the offense.”           18 Pa.C.S. § 311(a).                 “Forcible

compulsion”    means     “something      more”     than    mere    lack     of   consent.

Commonwealth v. Smolko, 666 A.2d 672, 676 (Pa.Super.1995). “Where

there is a lack of consent, but no showing of either physical force, a threat of

physical   force,   or   psychological    coercion,       the   ‘forcible   compulsion’

requirement. . .is not met.” Id.

      The trial court comprehensively analyzed the sufficiency of the

evidence of rape in its opinion denying Gonzalez’s motion for post-trial relief.

The court aptly described this case as “unique”, because “it is not a case of


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moral, psychological, or intellectual forcible compulsion that has often been

found in circumstances involving a young, vulnerable victim and a

perpetrator who is in a position of authority and trust.”           Opinion Denying

Post-Trial Relief (“Post-Trial Opinion”), 11/5/13, p. 13.            The court was

careful to note that this case involved “two competent adults who formed a

dating relationship” who had engaged in “some consensual intimacy (i.e.

kissing, hugging)”, and the incident “occurred during a planned date.” Id.,

p. 14. Moreover, “the victim initiated kissing and touching with [Gonzalez]

on the couch in his living room, willingly walked herself to the bedroom upon

[Gonzalez’s] request, and did not protest when he removed her pants and

underwear.” Id. Thus, the court found nothing about the respective ages or

mental   conditions   of   Gonzalez   and      K.M.   that    demonstrates    forcible

compulsion.   Id.     Gonzalez did not occupy a position of “authority or

custodial control” over K.M., and she was not under duress. Id.

      Despite these factors, the trial court reasoned that other details

showed Gonzalez’s “domination” over K.M. The court observed that K.M.’s

cerebral palsy “was a physical condition that caused her to have stiff legs

with limited movement and walk with crutches.”               Id., p. 16.   During the

encounter, “she was lying on her back, away from her crutches and her cell

phone,” all of which Gonzalez had placed beyond her reach, and she “was

away from any objects she could use to help lift herself up. . .”                 Id.

Gonzalez “was initially lying on top of her and then forced her legs apart and


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cuffed her ankles on his shoulders. He also told [K.M.] to be quiet when she

repeatedly said ‘ow’ during the penetration.” Id. Although K.M. did not call

out for help or try to push Gonzalez away with her arms, “resistance is not

necessary to prove forcible compulsion” – and in any event, resistance would

have accomplished nothing, since Gonzalez was too big to push off her body,

and she was unable to kick due to her cerebral palsy. Id., pp. 16-17.

      The trial court also concluded that there was evidence of “physical

force.” By itself, K.M.’s statement, “no don’t”, is not sufficient evidence of

force, because this statement only indicates lack of consent, and “forcible

compulsion is something more than lack of consent.”         Id. at 17 (citing

Commonwealth v. Berkowitz, 641 A.2d 1161, 1165 (Pa.1994).               Here,

however, there was “something more,” specifically, lack of consent and

physical force:

            [Gonzalez] forc[ed] the victim’s legs apart, ben[t]
            her knees, mov[ed] her ankles up to his shoulders
            and cuff[ed] her ankles while he penetrated her.
            The victim was unable to open her legs or bend her
            knees by herself. [Gonzalez] repositioned her legs
            when he penetrated her with his finger, and then
            again placed her legs back on his shoulders when he
            penetrated her with his penis a second time. Again,
            the victim was unable to move her legs to resist or
            prevent [Gonzalez’s] actions.

Id., p. 17. Although this force “was not extreme, it was certainly unique to

the factual circumstances of the case and sufficient to establish forcible

compulsion by [Gonzalez] on this particular victim” beyond a reasonable

doubt. Id., pp. 17-18.

                                    - 14 -
J-S78026-14


     We agree with the trial court’s astute analysis by construing the

evidence in the light most favorable to the Commonwealth.              K.M.’s

testimony establishes that she told Gonzalez that she did not want

premarital intercourse. Gonzalez pretended to agree with K.M., but one day

later, he maneuvered her into a position in which she was powerless to

resist his advances.   He took her to his apartment, where she had never

been before. He placed her cell phone out of reach in a living room tray,

and when they adjourned to his bedroom and lay down on his bed, he placed

her crutches out of reach.   Without her phone or crutches, she could not

escape from the bed or contact an outside agency for help.           He then

disrobed her and lay on top of her. She uttered “no, don’t,” but instead of

stopping, he forced her legs apart and cuffed them on his shoulders –

movements she was incapable of performing herself due to her cerebral

palsy. He then penetrated her with his penis and told her to be quiet when

she repeatedly called out “ow”.      K.M.’s lack of consent (“no, don’t”),

combined with Gonzalez’s use of domination and physical force, provide

sufficient evidence of forcible compulsion to justify his conviction for rape.

Gonzalez’s contention that K.M. initiated sexual intercourse and that he

followed her directions does not undermine the sufficiency of the evidence.

Commonwealth v. Andrulewicz, 911 A.2d 162, 166 (Pa.Super.2006)

(“the court was free to accept [the victim’s] characterization of what

transpired with Appellant, particularly her representation that Appellant


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‘raped’ her”); Filer, 846 A.2d at 141 (victim’s testimony that defendant

digitally penetrated her was sufficient evidence for jury to find defendant

guilty of aggravated indecent assault despite defendant’s different version of

events).

      The evidence is also sufficient to support Gonzalez’s conviction for

aggravated indecent assault.     The Crimes Code defines this offense in

pertinent 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
            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; [or]
            (2)   The person does so by forcible compulsion.

18 Pa.C.S. § 3125(a).        Digital penetration is sufficient to support a

conviction for aggravated indecent assault, Commonwealth v. Filer, 846

A.2d 139, 141 (Pa.Super.2004), as is penetration with the defendant’s penis.

Commonwealth v. Castlehun, 889 A.2d 1228, 1233 (Pa.Super.2005)

(evidence was sufficient to support finding that defendant penetrated

victim’s vagina, as required to support aggravated indecent assault

conviction; victim testified that defendant both digitally penetrated her

vagina and inserted his penis into her vagina).


                                    - 16 -
J-S78026-14


      Here, Gonzalez penetrated K.M. with his finger and then with his

penis. K.M. testified that she said “no, don’t” and that Gonzalez “raped” her.

This evidence demonstrates that each penetration occurred without K.M.’s

consent.   Andrulewicz, Filer, supra.        And as explained on pages 11-14,

the evidence also is sufficient to demonstrate forcible compulsion. Thus, the

evidence is sufficient to prove aggravated indecent assault beyond a

reasonable doubt.

      The same evidence is sufficient to sustain Gonzalez’s conviction for

sexual assault.   The Crimes Code defines this offense in pertinent part as

follows: “A person commits a felony of the second degree when that person

engages in sexual intercourse or deviate sexual intercourse with a

complainant without the complainant’s consent.”         18 Pa.C.S. § 3124.1.

Resistance to the sexual assault is not a requisite for sustaining a conviction

for sexual assault.    Andrulewicz, 906 A.2d at 165-66.         The evidence

demonstrates that Gonzalez and K.M. engaged in sexual intercourse without

K.M.’s consent.

      Gonzalez’s second argument on appeal is that the verdict is contrary to

the weight of the evidence. 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.   Commonwealth v. Forbes, 867 A.2d 1268,


                                    - 17 -
J-S78026-14


1273–74 (Pa.Super.2005). 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.     Commonwealth v. Bruce,

916 A.2d 657, 665 (Pa.Super.2007). 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. Id.

      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.” Commonwealth v. Knox, 50 A.3d 732, 738 (Pa.Super.2012).

An appellate court may not reverse a verdict unless it is so contrary to the

evidence as to shock one's sense of justice. Forbes, 867 A.2d at 1273–74.

      The trial court fully and satisfactorily explains why Gonzalez’s weight

of the evidence claim is unsuccessful:

            The [c]ourt disagrees with [Gonzalez]’s statement
            that totality of the evidence presented at trial
            established that any sexual relations that [Gonzalez]
            had with the victim were consensual in nature. True,
            much of the evidence presented at trial did establish
            that the victim and [Gonzalez] engaged in some
            consensual kissing and touching prior to the sexual
            intercourse, but the testimonies of the victim and
            [Gonzalez] clearly conflict regarding whether the
            sexual intercourse itself was consensual. The sexual

                                     - 18 -
J-S78026-14


          intercourse is the subject of the criminal convictions
          at issue, not anything that occurred prior.

          Regardless. . .it is entirely irrelevant what the
          totality of the evidence does or does not establish,
          because the jury is free to believe all, part, or none
          of the evidence presented at trial. The victim’s
          testimony shows that the sexual intercourse that
          occurred in [Gonzalez]’s bedroom on March 8, 2011
          was not consensual. For example, after detailing the
          events in [Gonzalez]’s bedroom, the victim went on
          to testify that [Gonzalez] ‘raped her.’ (N.T. 9/3/2013
          p.    93,    97,   183).   She    agreed     with   the
          Commonwealth’s statement that she never gave
          [Gonzalez] permission to have sexual intercourse
          with her, and said "no, don’t" when [Gonzalez] lay
          on top of her. Id. at 97. Due to the nature of the
          verdict, the jury evidently found the victim credible,
          and elected not to believe [Gonzalez]’s version of
          events. See Commonwealth v. Hunzer, 868 A.2d
          498, 507 (Pa.Super.2005). Conflicts between the
          testimonies of the victim and [Gonzalez] are for the
          jury to resolve, and review of the jury’s credibility
          determinations is not for the trial court to undertake.
          As referenced above, 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. Widmer, 744 A.2d
          at 751-52. The jury weighed the evidence presented,
          evaluated the testimony of the witnesses, and made
          a determination thereupon. It was entitled to believe
          the victim and to find [Gonzalez] incredible.

          The Court also disagrees with [Gonzalez]’s argument
          that the testimony presented at trial did not
          establish forcible compulsion, threat of forcible
          compulsion or the absence of consent. We have
          already found that the victim’s testimony at trial
          established forcible compulsion and the absence of
          consent. . .Although [Gonzalez]’s version of events
          does not establish either, the jury found the victim
          and her testimony credible and discredited that of
          [Gonzalez]. The Court will not disturb the jury’s
          credibility determinations here.

                                  - 19 -
J-S78026-14



              After careful review of the record, the Court cannot
              find the verdicts so contrary to the evidence as to
              shock one’s sense of justice and make an award of a
              new trial imperative. Consequently, the Court does
              not find [Gonzalez]’s testimony and version of events
              so clearly of greater weight than the victim’s that
              failure to give it credence amounts to a denial of
              justice. [Gonzalez] is not entitled to a new trial as
              the verdicts are not against the weight of the
              evidence.

Opinion, pp. 17-19. For the reasons given by the trial court, we conclude

that it properly exercised its discretion in denying Gonzalez’s challenge to

the weight of the evidence.

       In his third argument on appeal, Gonzalez contends that the trial court

erred in admitting into evidence an audiotape of K.M.’s statement to the

police on March 13, 2011, several days after the incident and over two years

before trial.19 The trial court held that the audiotape was admissible under

Pa.R.E. 613(c) as a prior consistent statement. Gonzalez contends that the

audiotape did not qualify as a prior consistent statement. Gonzalez argues

that the audiotape prejudiced him, because K.M.’s sobbing voice made the

jury sympathize with her and become inflamed against him.

       As the appellant, Gonzalez has the duty to ensure that the record is

complete for purposes of appellate review. Commonwealth v. Griffin, 65

A.3d 932, 936 (Pa.Super.2013). The record in this case does not include the
____________________________________________


19
   The court permitted the Commonwealth to play the tape during trial.
N.T., 9/3/2013, p. 96.



                                          - 20 -
J-S78026-14


audiotape or even a transcript of K.M.’s statement, thus thwarting our

review of Gonzalez’s argument. Commonwealth v. Preston, 904 A.2d 1, 6

(Pa.Super.2006) (en banc).        Accordingly, we find this argument waived.

Commonwealth v. Powell, 956 A.2d 406, 422-23 (Pa.2008) (defendant

waived appellate review of his claim that trial court erred at trial for capital

murder in admitting a certain autopsy photograph; photograph was not

contained in the record, and the Supreme Court was accordingly unable to

assess defendant’s claim, which was based on his assertions that photograph

was gruesome and had a strong likelihood that it would inflame passions of

jury).

         In his fourth argument on appeal, Gonzales asserts that the trial court

abused its discretion in granting the Commonwealth’s motion to preclude

evidence concerning K.M.’s mental health diagnoses. This argument has two

subparts – a claim that the trial court should have permitted evidence

concerning K.M.’s mental health diagnoses, and a claim that the trial court

erred in refusing to compel the Commonwealth to produce mental health

records pertaining to K.M from an alleged mental health facility, Brooklane

Health Services (“BHS”). Neither subpart is persuasive.

         The relevant procedural history is as follows.      In mid-2012, the

Commonwealth produced K.M.’s medical records from Waynesboro Hospital

(July 1, 2006 through August 31, 2006 and February 1, 2009 through March

1, 2009), Cumberland Valley Women’s Group (February 1, 2008 through


                                      - 21 -
J-S78026-14


March 1, 2009), Antrim Family Medicine (February 1, 2008 through March 1,

2009) and Hershey Medical Center (January 1, 2004 through January 30,

2013) (collectively “the medical facilities”). These records delineated K.M.’s

medical treatment both before and after the assault.

        Gonzalez also demanded K.M.’s records from BHS,20 which he alleged

is a mental health facility21 that K.M. checked into “shortly after” the

assault.22 The trial court repeatedly denied Gonzalez’s requests for the BHS

records.23

        On July 23, 2013, the Commonwealth moved to preclude evidence of

K.M.’s mental health diagnoses in the medical facilities’ records.24        In

____________________________________________


20
   Defendant’s Motion Requesting Order Of Court To Release Criminal
Complainant’s School Records And Medical Records (Doc. # 15) (filed
December 29, 2011); Defendant’s Motion For Reconsideration Of Denial Of
Defendant’s Motion Requesting Order Of Court To Release Criminal
Complainant’s School Records And Medical Records (Doc. # 19) (filed
February 17, 2012); Defendant’s Memorandum In Support Of Defendant’s
Motion For Reconsideration, p. 5 (Doc. # 82) (filed August 26, 2013).
21
  The Commonwealth did not dispute below, and does not dispute here, that
BHS is an actual, extant mental health facility. Therefore, we assume for
purposes of this appeal that BHS is an actual, extant mental health facility.
22
   Defendant’s Memorandum In Support Of Defendant’s               Motion   For
Reconsideration, p. 5 (Doc. # 82) (filed August 26, 2013).
23
  Order Dated January 31, 2012 (Doc. # 18); Order Dated March 16, 2012
Denying Defendant’s Motion For Reconsideration (Doc. # 23); Order Dated
August 29, 2013 Denying Defendant’s August 26, 2013 Motion For
Reconsideration (Doc. # 83).
24
     Commonwealth’s Motion In Limine (Doc. # 71) (filed July 23, 2013).



                                          - 22 -
J-S78026-14


response, Gonzalez obtained an expert report25 which opined: “The

diagnoses [in the medical records] of depression (noted to be worsening)

and anxiety may affect perception and recollection. Diagnoses of depression

and anxiety and the medications used to treat these diagnoses may affect

perception and recollection.”26 [Emphasis added] On August 13, 2013, the

trial court granted the Commonwealth’s motion to exclude evidence of K.M.’s

mental health diagnoses in the medical facilities’ records.27

        We first address the trial court’s order precluding evidence of K.M.’s

mental health diagnoses. In general, the admission of evidence

              is a matter vested within the sound discretion of the
              trial court, and such a decision shall be reversed only
              upon a showing that the trial court abused its
              discretion. In determining whether evidence should
              be admitted, the trial court must weigh the relevant
              and probative value of the evidence against the
              prejudicial impact of the evidence. Evidence is
              relevant if it logically tends to establish a material
              fact in the case or tends to support a reasonable
              inference regarding a material fact. Although a court
              may find that evidence is relevant, the court may
              nevertheless conclude that such evidence is
              inadmissible on account of its prejudicial impact.

____________________________________________


25
  Defendant’s Response To Commonwealth’s Motion In Limine, Exhibit “A”
(Doc. # 72) (filed July 29, 2013) (expert report of Kathleen Brown, Ph.D.,
RN, associate practice professor at the University of Pennsylvania’s School of
Nursing).
26
   Defendant’s Response To Commonwealth’s Motion In Limine, Exhibit “A”,
p. 4.
27
     Opinion And Order Dated August 12, 2013 (Doc. # 77).



                                          - 23 -
J-S78026-14


Commonwealth v. Weakley, 972 A.2d 1182, 1188 (Pa.Super.2009).

Furthermore, when determining the admissibility of evidence of a witness’

mental instability,

            [t]he crucial determination that a trial judge must
            make. . .is whether [this evidence] is related to the
            subject of the litigation or whether it affects the
            testimonial ability of the witness so as to impeach
            him. The evidence can be said to affect the credibility
            of a witness when it shows that his mental
            disorganization in some way impaired his capacity to
            observe the event at the time of its occurrence, to
            communicate his observations accurately and
            truthfully at trial, or to maintain a clear recollection
            in the meantime.

Commonwealth v. Mason, 518 A.2d 282, 285 (Pa.Super.1986).

      In this case, Gonzalez contends that the report of his expert, Dr.

Brown, created enough questions about K.M.’s ability to perceive and recall

events that the trial court should have denied the Commonwealth’s motion

to preclude evidence of K.M.’s mental instability.           The law on the

admissibility of expert testimony is well settled. Pa.R.E. 703 provides:

            The facts or data in the particular case upon which
            an expert bases an opinion or inference may be
            those perceived by or made known to the expert at
            or before the hearing. If of a type reasonably relied
            upon by experts in the particular field in forming
            opinions or inferences upon the subject, the facts or
            data need not be admissible in evidence.

Under this rule,

            expert testimony    is incompetent if it lacks an
            adequate basis in   fact. While an expert’s opinion
            need not be based   on absolute certainty, an opinion
            based on mere       possibilities is not competent

                                     - 24 -
J-S78026-14


            evidence. This means that expert testimony cannot
            be based solely upon conjecture or surmise. Rather,
            an expert’s assumptions must be based upon such
            facts as the jury would be warranted in finding from
            the evidence.

Gillingham v. Consol Energy, Inc., 51 A.2d 841, 849 (Pa.Super.2012).

While an expert need not use “magic words,” the foundation of her opinion

must still be sturdy.   As our Supreme Court has emphasized, the expert

must base the substance of her opinion on a reasonable degree of certainty

instead of mere speculation.    Commonwealth v. Spotz, 756 A.2d 1139,

1150 (Pa.2000) (forensic pathologist’s testimony in first-degree murder trial

as to victim’s manner of death was properly based on reasonable degree of

medical certainty, though pathologist did not use those “magic words,”

where pathologist explained that victim had been shot in neck and chest,

that amount of hemorrhage surrounding gunshot wounds indicated she was

shot while she was alive, and that minimal hemorrhage surrounding other

wounds indicated she was run over after she died).

      In our view, Dr. Brown grounded her report on “on mere possibilities”

instead of a reasonable degree of certainty. Gillingham, supra, 51 A.3d at

849. She stated only that K.M.’s diagnoses of depression and anxiety in the

medical records “may affect [her] perception and recollection.” She failed to

opine that K.M.’s alleged depression or anxiety impaired her perception or

recall of the critical events at the heart of this case. Because her report was

nothing more than “conjecture or surmise,” Id., the trial court acted within


                                    - 25 -
J-S78026-14


its discretion by excluding evidence of K.M.’s mental health diagnoses in the

records provided by the Commonwealth.28

       We turn to Gonzalez’s contention that the trial court erred by denying

his requests to compel the Commonwealth to produce K.M.’s records from

BHS. Gonzalez apparently believes that the BHS records might bolster his

claim that K.M. “[lacked] capacity to observe the event at the time of its

occurrence, to communicate [her] observations accurately and truthfully at

trial, or to maintain a clear recollection in the meantime.” Mason, supra,

518 A.2d at 285. We review the trial court’s discovery rulings for abuse of

discretion.    Commonwealth           v.       Robinson,   834   A.2d   1160,   1166

(Pa.Super.2003).



____________________________________________


28
   It bears mention that despite the trial court’s ruling, it permitted counsel
to ask questions about K.M.’s medication use, yet none of the evidence
showed that the medications affected her ability to testify. For example,
defense counsel asked K.M. if she had “taken any medications today that
might affect [her] ability to continue?” N.T. 9/3/2013, p. 147.            K.M.
responded in the negative, and defense counsel asked: “Are there any
medications that you needed to take that you didn’t have a chance to take?”
Id. K.M. again responded in the negative. Id. The Commonwealth asked
K.M.’s mother if she was familiar with several different medications that K.M.
took due to her cerebral palsy. Id. at 206. K.M.’s mother responded that
she was, and the Commonwealth asked if she had “noticed any problems
with disorientation, memory loss, or anything like that as a result of that
medication.” Id. K.M.’s mother responded that there were problems which
lasted about a week when the victim first started taking the medications
when she was 25, but at the time of the assault, March 2011, she did not
recall K.M. having any problems with awareness or orientation in time or
place. Id.



                                           - 26 -
J-S78026-14


       For two reasons, we conclude that the trial court acted within its

discretion by denying Gonzalez access to the BHS records.                First, despite

Gonzalez’s claims that K.M. sought in-patient treatment at BHS “shortly

after” Gonzalez’s assault, we find nothing in the record which establishes

when, if ever, K.M. received treatment at BHS. Absent such indicia, we have

no way to gauge the relevance of the BHS records. Moreover, Dr. Brown,

Gonzalez’s      expert,    reviewed       copious   medical    records     from     the

aforementioned medical facilities relating to K.M.’s treatment from mid-2006

through early 2013, both before and after Gonzalez’s assault. The most that

Dr. Brown can say after reading 6½ years of medical records is her wholly

inadequate     remark     that   K.M.’s    depression   and   anxiety    “may     affect

perception and recall.”          Under these circumstances, it seems rather

speculative for Gonzalez to suggest that the BHS records would have

provided anything more helpful to his defense.

       Second, assuming that K.M. received treatment at BHS, the BHS

records are privileged and not subject to release without K.M.’s consent.29

The Mental Health Procedures Act (“MHPA”) provides in relevant part:




____________________________________________


29
   Although the trial court did not discuss the subject of privilege, we still
have the authority to affirm on this ground. Bradley v. General Acc. Ins.
Co., 778 A.2d 707, 710 n. 2 (Pa.Super.2001) (“we may affirm the decision
of [the trial] court if the result is correct on any ground”).



                                          - 27 -
J-S78026-14


            (a) All documents concerning persons in treatment
            shall be kept confidential and, without the person’s
            written consent, may not be released or their
            contents disclosed to anyone except:

            (1) those engaged in providing treatment for the
            person;
            (2) the county administrator, pursuant to section
            110;
            (3) a court in the course of legal proceedings
            authorized by this act; and
            (4) pursuant to Federal rules, statutes and
            regulations   governing     disclosure of patient
            information where treatment is undertaken in a
            Federal agency.

            In    no     event,   however,    shall    privileged
            communications, whether written or oral, be
            disclosed to anyone without such written consent.

50 P.S. § 7111 (emphasis added).      The MHPA must be strictly construed.

Commonwealth v. Moyer,          595   A.2d   1177,   1179   (Pa.Super.1991).

Construed strictly, the MHPA limits judicial use of mental health records to

mental health commitment proceedings unless the patient consents to their

use in other judicial proceedings.     50 P.S. § 7111.       Moyer speaks

definitively on this point:

            The unambiguous language of section 7111(3) leads
            us to conclude that a patient’s inpatient mental
            health treatment records may be used by a court
            only when the legal proceedings being conducted are
            within the framework of the MHPA, that is,
            involuntary and voluntary mental health commitment
            proceedings. See 50 P.S. § 7103 (MHPA establishes
            the rights and procedures for all involuntary
            treatment of mentally ill persons, whether inpatient
            or outpatient, and for all voluntary inpatient
            treatment of mentally ill persons). See also Kakas


                                   - 28 -
J-S78026-14


            v.   Commonwealth         of    Pennsylvania,     65
            Pa.Cmwlth. 550, 442 A.2d 1243 (1982). We can find
            no language within the [MHPA] itself which includes
            criminal proceedings within the framework of the act,
            nor can we find any caselaw in the Commonwealth
            which supports such a proposition.

Id. (emphasis in original).   The records at issue in Moyer were mental

health records of a criminal defendant, while the mental health records in

this case pertain to a criminal complainant (K.M.). Nevertheless, Moyer’s

construction of section 7111(3) applies with equal force to this case.

Because this case is not a voluntary or involuntary mental health

commitment proceeding, K.M.’s mental health records are not discoverable

absent K.M.’s consent to their release. Nothing in the record indicates that

K.M. consented to the release of BHS records. Thus, they have no place in

this criminal case.

      We do not agree with Gonzalez’s argument that Commonwealth v.

Dudley, 510 A.2d 1235 (Pa.Super.1986), requires disclosure of K.M.’s BHS

records.   In Dudley, a complainant received psychiatric treatment at two

hospitals within several months after an alleged rape. The complainant had

hallucinations and suffered a psychotic episode approximately two months

after the incident and approximately six months before trial. According to a

psychiatrist who treated her, the complainant had a “hysterical personality,

which means when she gets overwhelmed or needs more attention, and [sic]

she does have childish attention-seeking behavior. . .then she has fainting



                                   - 29 -
J-S78026-14


spells.” Id., 510 A.2d at 1238. The trial court ruled that defense counsel

could not introduce the testimony of a psychiatrist who treated the

complainant at one of the hospitals.    This Court determined that the trial

court abused its discretion by excluding psychiatric testimony regarding the

complainant’s post-incident hospitalization, because “[the complainant’s]

mental disorganization in some way impaired [her] capacity to observe the

event at the time of its occurrence, to communicate [her] observations

accurately and truthfully at trial, or to maintain a clear recollection in the

meantime.” Id.


      Dudley is distinguishable from the present case. Unlike Dudley, the

record in this case does not reveal whether the facility in question, BHS, is a

mental health facility, or when K.M. received treatment at BHS. In addition,

the complainant’s diagnosis in Dudley clearly implicated her abilities to

perceive and recall critical events. Here, despite in-depth review of years of

medical records, Gonzalez’s expert did not opine to a reasonable degree of

certainty that K.M.’s depression and anxiety affected her ability to perceive

and recall the events of March 8, 2011. Simply put, nothing in the present

record demonstrates that the alleged BHS records have any relevance.

Moreover, Dudley did not analyze whether the MHPA barred disclosure of

the complainant’s records.


      In his fifth issue on appeal, Gonzalez argues that he is entitled to a

new trial because the trial court permitted the Commonwealth to read K.M.’s

                                    - 30 -
J-S78026-14


entire     preliminary    hearing     testimony    into    the   record    during   the

Commonwealth’s redirect examination of K.M.               According to Gonzalez, the

trial court improperly permitted the Commonwealth to present inadmissible

prior consistent testimony. As discussed above, we review the trial court’s

decision to admit or deny evidence for abuse of discretion.               We detect no

abuse of discretion in the court’s decision to permit the Commonwealth to

read K.M.’s preliminary hearing testimony into the trial record.


         During K.M.’s cross-examination, defense counsel impeached her with

several excerpts from her preliminary hearing testimony. Defense counsel

used a portion of K.M.’s preliminary hearing testimony to discuss whether

she was confused about having any physical contact with the Defendant

prior to March 8, 2011.30        Counsel also attempted to show inconsistencies

regarding how K.M. said the alleged finger penetration occurred.31                   In

addition, counsel tried to call K.M.’s attention to inconsistencies in her

testimony about the amount of questions her mother had asked her the

night of the incident.32        On redirect, the Commonwealth said to K.M.:

“[W]hat I'd like to do now is go over your testimony basically, in full,

____________________________________________


30
     N.T., 9/3/2013, pp. 109-110.
31
     N.T., 9/3/2013, pp. 129-130.
32
     N.T., 9/3/2013, pp. 148-149.




                                          - 31 -
J-S78026-14


between page 5 and page 17 so that the jury gets a fair and accurate

depiction of what the entire testimony was instead of little bits and pieces.” 33

Defense counsel objected and asked for an offer of proof and an explanation

as to relevancy.34 The Commonwealth argued the rule of completeness and

stated that defense counsel had “taken bits and pieces of testimony and

cross-examined the witness about it. The jury needs to hear what the entire

testimony was so they can determine what was said.”35            The trial court

allowed the Commonwealth to read K.M.’s entire preliminary hearing

testimony at trial.36 On recross, the court permitted defense counsel to read

relevant portions of the victim’s preliminary hearing testimony.37

        The scope of redirect examination is largely within the discretion of the

trial court.      Commonwealth v. Dreibelbis, 426 A.2d 1111, 1117

(Pa.1981).     When a party raises an issue on cross-examination, it is no

abuse of discretion for the court to permit redirect on that issue to dispel

any unfair inferences. Id., 426 A.2d at 1117. The trial court reasoned that



____________________________________________


33
     N.T., 9/3/2013, p. 169.
34
     N.T., 9/3/2013, p. 170.
35
     N.T., 9/3/2013, p. 170.
36
     N.T., 9/3/2013, pp. 170-182.
37
     N.T., 9/3/2013, pp. 184-202.



                                          - 32 -
J-S78026-14


its decision to permit the Commonwealth to read K.M.’s preliminary hearing

testimony into the record on redirect does not warrant a new trial:

               We permitted the Commonwealth to redirect the
               victim with her preliminary hearing testimony to
               dispel any unfair inferences that reading small
               portions of the testimony out of context raised. We
               did not abuse our discretion in allowing the
               Commonwealth to do so. Unfortunately, while
               reading the Preliminary Hearing testimony onto the
               record, the Commonwealth went far beyond the
               issues that were raised by defense counsel on cross-
               examination. Consequently, the Court permitted
               defense counsel to read other relevant portions of
               the victim’s preliminary hearing testimony on recross
               to give both parties the same opportunity.
               Admittedly, the Commonwealth’s redirect went
               beyond what the Court had intended, yet defense
               counsel was given an equal opportunity to do the
               same, and we did not abuse our discretion in initially
               allowing the Commonwealth the opportunity to dispel
               any unfair inferences.

Opinion, pp. 48-49. We agree with the trial court’s reasoning that it acted

within its discretion in its initial decision to permit the Commonwealth to

read K.M.’s preliminary hearing testimony into the trial record.

          Even if the trial court erred in permitting the Commonwealth to read

too much of K.M.’s preliminary hearing testimony into the record, any error

was harmless.       “The harmless error doctrine, as adopted in Pennsylvania,

reflects the reality that the accused is entitled to a fair trial, not a perfect

trial.”      Commonwealth v. Hairston, 84 A.3d 657, 671 (Pa.2014).

Harmless error exists if the record demonstrates, inter alia, that the error

did not prejudice the defendant or the prejudice was de minimis.            Id.


                                       - 33 -
J-S78026-14


Gonzalez’s brief does not identify specific examples of prejudice that he

suffered from the reading of K.M.’s preliminary hearing testimony.          He

simply proclaims, without specific citations, that the trial court “allowed the

Commonwealth to present inadmissible prior consistent testimony.”         This

bald assertion does not establish that Gonzalez suffered prejudice.

      In his final argument on appeal, Gonzalez insists that his sentence is

unreasonable and excessive.     He further asserts that while the sentences

imposed did not exceed the statutory maximum and were within the

standard range of the sentencing guidelines, they are still excessive.

      This is a challenge to the discretionary aspects of Gonzalez’s sentence.

Our standard of review is as follows:

            Sentencing is a matter vested in the sound discretion
            of the sentencing judge, and a sentence will not be
            disturbed on appeal absent a manifest abuse of
            discretion. In this context, an abuse of discretion is
            not shown merely by an error in judgment. Rather,
            the appellant must establish, by reference to the
            record, that the sentencing court ignored or
            misapplied the law, exercised its judgment for
            reasons of partiality, prejudice, bias or ill will, or
            arrived at a manifestly unreasonable decision.

Commonwealth v. Hoch, 936 A.2d 515, 517–18 (Pa.Super.2007).

      The right to appellate review of the discretionary aspects of a sentence

is not absolute and must be considered a petition for permission to appeal.

Hoch, 936 A.2d at 518. An appellant must satisfy a four-part test to invoke

this Court’s jurisdiction when challenging the discretionary aspects of a

sentence. We must consider:

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              (1) whether appellant has filed a timely notice of
              appeal; (2) whether the issue was properly
              preserved at sentencing or in a motion to reconsider
              and modify sentence; (3) whether appellant’s brief
              has a fatal defect; and (4) whether there is a
              substantial question that the sentence appealed from
              is not appropriate under the Sentencing Code.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super.2010).

       Here, Gonzalez timely filed his notice of appeal within thirty days after

the trial court denied his post-sentence motions.      Pa.R.Crim.P. 720(A)(2).

He preserved the challenge to his sentence in his post-sentence motions and

included a Pa.R.A.P. 2119(f) statement in his brief.      Further, he raises a

substantial question, i.e., a plausible argument that the sentencing court

either acted inconsistently with a specific provision of the code, or acted

“contrary to the fundamental norms which underlie the sentencing process.”

Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005).               The

substantial question in Gonzalez’s brief is an “excessive sentence claim[] in

conjunction with an assertion that the court did not consider mitigating

factors.” Commonwealth v. Dodge, 77 A.3d 1263, 1272 (Pa.Super.2013)

(en banc).38

____________________________________________


38
   In a thorough analysis, Dodge demonstrates that this Court has reached
inconsistent decisions as to whether the claim that the trial court failed to
various mitigating factors when fashioning the defendant’s sentence
constitutes a “substantial question”. Id., 77 A.3d at 1272 n. 8. In the same
discussion, Dodge held that a substantial question exists when the
defendant asserts both a claim of excessiveness and the trial court’s failure
to take mitigating circumstances into account. Id. at 1272-73.



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     We determine, however, that Gonzalez’s excessiveness claim is devoid

of merit.   We find persuasive the trial court’s thorough analysis of this

question:

            [Gonzalez] argues that the Court failed to properly
            weigh[] certain mitigating circumstances, including
            his law abiding past, his education, his employment
            history, his community and familial support, and the
            fact that this was his first conviction. The Court
            disagrees as this argument is contradicted by the
            record. First, a pre-sentence investigation report
            was prepared by the Probation Department, and our
            Supreme Court has stated that, ‘[w]here pre-
            sentence reports exist, we shall continue to presume
            that the sentencing judge was aware of relevant
            information regarding [Gonzalez]’s character and
            weighed those considerations along with mitigating
            statutory factors.’ Commonwealth v. Devers, 546
            A.2d 12, 18 (Pa. 1988). Not only did the Court
            thoroughly     review    [Gonzalez]’s    pre-sentence
            investigation report, but also considered [Gonzalez]’s
            twenty-four letters of support, heard and considered
            the individuals who came forth to support [Gonzalez]
            at sentencing, and heard what his attorney stated on
            his   behalf.    See    N.T.    12/18/2013    p.  41.
            Acknowledging this information, the Court stated,
            ‘[t]he witnesses that have testified in your support
            and the letters provided for those who are absent
            today all attest to your good moral character, your
            commitment to the community in general, and to
            your church.’ Id. The Court stated further:

                 Notwithstanding the uncontested good deeds
                 that are attested to in these documents
                 relative to your community, the issue alone is
                 not whether you are viewed as an upstanding
                 contributing member of society. The focus
                 today must be on what you did do to this
                 victim on March 8th of 2011 and how should
                 you be held accountable for your behavior on
                 that day.


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          Id. at 41-42. Despite [Gonzalez]’s contentions
          otherwise, the Court did in fact consider and weigh
          mitigating factors, yet found them of lesser value
          when considering the gravity of [Gonzalez]’s crimes
          against the victim. Additionally, at the time of
          sentencing, [Gonzalez] still refused to ‘acknowledge
          wrongdoing or the pain of the victim.’ Id. at 42.
          Such lack of remorse and accountability weighed
          heavily in the Court’s sentencing decisions and
          weighed against the mitigating factors [Gonzalez]
          claims the Court failed to consider. The Court
          reasoned that [Gonzalez]’s ‘choice to not express
          remorse for the victim’s consequences of that day
          limits the value of the character witnesses letters
          and testimony provided today such that I can
          consider them in shaping the sentence. But they
          cannot be viewed as an excuse for your behavior.’
          Id.

          Finally, [Gonzalez] asserts that the Court unduly
          emphasized the nature of the crimes and their
          impact on the victim, and the physical limitations of
          the victim in sentencing [Gonzalez].        The Court
          disagrees because ‘[e]qual attention’ was given to
          the victim and [Gonzalez]. Id. at 43. Also, the Court
          did not consider or discuss the victim’s physical
          limitations at sentencing. Furthermore, courts are
          required to consider the nature of the offenses and
          their impact on the victim. A court must ‘follow the
          general principle that the sentence imposed should
          call for confinement that is consistent with the
          protection of the public, the gravity of the offense as
          it relates to the impact on the life of the victim and
          on the community, and the rehabilitative needs of
          [Gonzalez].’ [Commonwealth v.] Mouzon, 812
          A.2d [617,] 620 [(Pa.2002)].

          Again, in imposing concurrent sentences of four to
          fifteen years for the rape conviction and two to ten
          years for the aggravated indecent assault conviction,
          the Court imposed sentences at the lowest end of
          the standard ranges. See N.T. 12/18/2013 p. 44.
          He will be serving his two sentences at the same
          time for an aggregate sentence of four to fifteen

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           years. At sentencing, the Commonwealth requested
           he be sentenced to eight to seventeen years, at the
           top of the standard range. Id. at 2, 44. Additionally,
           the Court properly took ‘into consideration
           [Gonzalez]’s      history   and       characteristics,
           but...also…the events of the day that led to
           [Gonzalez]’s conviction for rape and aggravated
           indecent assault.’ Id.

Opinion, pp. 53-55.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/21/2015




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