J-S60041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANTHONY RIVERA                             :
                                               :
                       Appellant               :   No. 824 MDA 2019

          Appeal from the Judgment of Sentence Entered April 8, 2019
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0003031-2016


BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                       FILED NOVEMBER 26, 2019

        Anthony Rivera (Rivera) appeals from the judgment of sentence entered

on April 8, 2019, by the Court of Common Pleas of Berks County (trial court)

following his convictions for aggravated assault, rape, sexual assault,

terroristic threats, possessing instruments of crime, and two counts of simple

assault.1    Rivera challenges the sufficiency of the evidence to sustain his

aggravated assault conviction and contends that all of his convictions were

against the weight of the evidence. We affirm.




____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

118 Pa.C.S. §§ 2702(a)(1), 3121(a)(1), 3124.1, 2706, 907(a), 2701(a)(1),
2701(a)(3).
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                                      I.

     The trial court summarized the facts of this case as follows:

     After a tumultuous year-and-a-half, Rita Rivera (“the Victim”) and
     Appellant ended their romantic relationship in 2016, but the two
     remained in contact. (Notes of Testimony of Trial from November
     27-28, 2018 “N.T.” at 62-65). Therefore, when on or about April
     23, 2016, the Victim was awoken from sleep to someone knocking
     on the front door of her Chestnut Street apartment in the City of
     Reading, and she recognized Defendant as the person knocking,
     she opened the door, thinking that Defendant merely wanted to
     talk. (N.T. 65-68). Unfortunately, when the Victim opened the
     door, Appellant pushed the door in and forced his way into the
     apartment. (N.T. 66-68). Appellant then pushed the Victim
     toward her bedroom and told the Victim that he was coming to kill
     her. (N.T. 68).

     Arriving at the bedroom, the two began to struggle and Appellant
     then took out a ten-inch knife from a cart that he had with him,
     put it to the Victim's face and told her that he would slash her
     throat. (N.T. 69-70). On the bed, Appellant was situated on top
     of the Victim with his knees in her back and his hands holding her
     shoulder and neck. (N.T. 72). Appellant began to punch the
     Victim in the face and repeatedly told her that he was going to kill
     her. (N.T. 71-72). Appellant demanded that the Victim close her
     eyes and told her that he had a gun, though the Victim never
     actually saw the gun. (N.T. 73).

     After telling the Victim that he wanted to rape her, Appellant then
     pulled down the Victim's pants and underwear, proceeded to rape
     the Victim and then rubbed ejaculate onto her face. (N.T. 73).
     Appellant punched the Victim in the jaw in order to force her
     mouth open, then poured what the Victim believed to be fabric
     softener into her mouth and began choking her. (N.T. 74). During
     the continuing struggle, the Victim was able to turn her face to
     the side and spit the substance out onto the floor and she and
     Appellant continued to struggle. Id.

     Appellant abruptly sat back and started crying. (N.T. 76). In an
     attempt to calm the situation and to quell any suspicions of
     Appellant that she might become aggressive, the Victim offered to
     make Appellant coffee.8 (N.T. 77). However, Appellant refused
     and forced the Victim to accompany him to Appellant’s apartment,

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     which was several blocks away. (N.T. 77-78). When the Victim
     attempted to resist, stating that she would scream along the way,
     Appellant reiterated threats that he had a gun, a knife, a stick and
     other tools in his cart. (N.T. 77).

           8The Victim explained that she was alone, confused
           and without energy and scared that if she appeared
           aggressive, Appellant would reengage the assault.
           (N.T. 76-77).

     Reaching Appellant’s apartment, Appellant gave the Victim some
     pills that rendered her unconscious. (N.T. 78). On Sunday, when
     the Victim awoke, she hurriedly dressed and left Appellant’s
     apartment, but Appellant followed her and grabbed the Victim’s
     shoulders, attempting to restrain her. (N.T. 79-80). A neighbor
     then emerged from an adjoining apartment and asked if the Victim
     was okay. Id. With the concerned neighbor providing an
     opportunity for the Victim to get away, the Victim ran into the
     elevator and left the building. (N.T. 80). A few days later, the
     Victim called police because Appellant continued to threaten her.
     Id.

     On April 26, 2018, Officer Christopher Bucklin responded to a call
     at 720 Chestnut Street in the City of Reading to meet with a
     reported assault victim. (N.T. 123). When Officer Bucklin arrived,
     he met with the Victim and noticed discoloration on the Victim’s
     face and signs of physical and emotional trauma, including
     fragmented thoughts, frequent weeping and genuine fear. (N.T.
     124-26). Officer Bucklin received the Victim’s account, which was
     consistent with the injuries he observed, and began taking
     photographs of the room where the assault took place. (N.T. 124-
     25).

                                     ***

     Officer Bucklin testified that a search warrant was issued and
     executed on Defendant’s residence. (N.T. 135). During the
     search of Defendant’s apartment, the black cart described by the
     Victim was found. (N.T. 136). On the black cart, a green back
     [sic] was found, which contained a blue bottle of fabric softener.
     (N.T. 137). Two knives were also found in Defendant’s apartment.
     (N.T. 137-39).




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        The Victim was taken to the Reading Hospital emergency room
        where she was assessed by a nurse specializing in sexual assault
        examinations. (N.T. 113-14). The Victim reported to the nurse
        that she had been held hostage in her apartment by an ex-
        boyfriend who had a knife and gun, held the Victim down and
        made her drink laundry detergent. (N.T. 116). After interviewing
        the Victim, the nurse performed an examination of the Victim in
        order to collect various swab specimens. (N.T. 116-17). The
        nurse indicated that no internal trauma was detected, but
        cautioned that she has observed allegations of forcible rape in
        which there is no internal trauma. (N.T. 117). However, the nurse
        did indicate that she observed signs of physical trauma on the
        Victim including discoloration on the Victim’s head and cuts on the
        Victim’s lip and left calf. (N.T. 117-18).

Trial court opinion, 7/15/19, at unnumbered 1-4.

        Rivera proceeded to a jury trial. At trial, the Commonwealth and Rivera

stipulated that no seminal material was found in any of the swabs taken during

the Victim’s rape kit. (N.T. at 149). However, DNA analysis identified the

Victim’s blood on two pillowcases and a blanket.             (N.T. at 149-50).

Spermatozoa found on a pillowcase and a blanket matched Rivera’s DNA.

(N.T. at 149-51).

        The jury found Rivera guilty of the above-mentioned offenses. The trial

court sentenced Rivera to an aggregate term of 13 to 35 years of

incarceration. He filed a timely post-sentence motion, which the trial court

denied. Rivera then timely filed a notice of appeal and both he and the trial

court complied with Rule 1925.2

____________________________________________


2   Our standard of review is well-settled:




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                                               II.

       Rivera first contends that the evidence was insufficient to sustain his

conviction for aggravated assault because the Victim did not suffer serious

bodily injury nor did Commonwealth introduce sufficient evidence that he

attempted to cause serious bodily injury. In making this argument, he relies

upon Commonwealth v. Alexander, 383 A.2d 887 (Pa. 1978), for the

principle that when serious bodily injury does not result, the Commonwealth

must prove intent to cause serious bodily injury to support a conviction for

aggravated assault.



____________________________________________


       The standard we apply in reviewing the sufficiency of the evidence
       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 [this] 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. Lopez, 57 A.3d 74, 79 (Pa. Super. 2012) (citation
omitted).


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       A defendant may be convicted of aggravated assault if he “attempts to

cause serious bodily injury to another. . . .” 18 Pa.C.S. § 2702(a)(1). The

Crimes Code defines “serious bodily injury” as “[b]odily injury which creates

a substantial risk of death or which causes serious, permanent disfigurement,

or protracted loss or impairment of the function of any bodily member or

organ.” 18 Pa.C.S. § 2301. Intent to commit aggravated assault may be

proven by circumstantial evidence or inferred from the totality of the

circumstances of the offense. Commonwealth v. Palmer, 192 A.3d 85, 96

(Pa. Super. 2018). Moreover, “the jury [is] permitted to attach significance

to the natural and probable outcome of [a defendant’s] behavior when

assessing intent.” Id.

       In Alexander, our Supreme Court held that a single punch to the

victim’s head was not sufficient to infer that the defendant had intended to

cause serious bodily injury.             383 A.2d at 889.   Rivera also cites

Commonwealth v. Savage, 418 A.2d 629, 632 (Pa. Super. 1980), and

Commonwealth v. Mayo, 414 A.2d 696 (Pa. Super. 1979), for the

propositions that pointing a gun at a victim or scratching a victim with a knife

without drawing blood are not sufficient to establish an intent to cause serious

bodily injury.3 Rivera’s claim is based on the premise that each individual part

____________________________________________


3 We note that in Mayo, the defendant was charged with aggravated assault
with a deadly weapon, which required proof of intent to cause “bodily injury”
instead of “serious bodily injury.” Commonwealth v. Mayo, 414 A.2d 696,



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of the attack would not be sufficient to support his aggravated assault

conviction. However, in evaluating the sufficiency of the evidence, we assess

the totality of the circumstances to determine whether intent was proven

beyond a reasonable doubt. Palmer, supra.

       Viewing the record in the light most favorable to the Commonwealth, it

is clear that the totality of the circumstances of the lengthy attack supports

the jury’s finding that Rivera intended to cause serious bodily injury.     The

Victim’s testimony established that Rivera did not throw a single punch and

walk away; rather, he repeatedly punched her in the face, held a knife to her

throat, and forced fabric softener into her mouth while choking her. (N.T. at

69-72, 74, 89-90). He also knew that one of the Victim’s arms was weak and

repeatedly struck that arm to make it harder for her to resist the attack. (N.T.

at 72, 89).       The attack lasted approximately 45 minutes, and Rivera

repeatedly told the Victim that he would kill her. (N.T. at 71-72, 88). While

the Victim managed to avoid swallowing the fabric softener by spitting it out

on her floor, the jury was entitled to conclude that Rivera intended to inflict

serious bodily injury and such injury could have resulted when Rivera forced

those chemicals into the Victim’s mouth while choking her.


____________________________________________


702 (Pa. Super. 1979). Relevant to Rivera’s claim, however, is our court’s
analysis of the defendant’s intent to cause bodily injury, not simply the type
of injury that resulted.




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                                           III.

       Next, Rivera contends that he is entitled to a new trial because the guilty

verdicts for all of the charges were against the weight of the evidence. 4 He

argues    that   the    Victim’s   testimony       was   incredible,   as   there   were

inconsistencies between the events as she recounted them at trial and when

she initially described the attack to Officer Bucklin, her co-worker and the

nurse who performed her rape kit.              Moreover, he argues that the physical

evidence does not corroborate the Victim’s version of events. We discern no

abuse of the trial court’s discretion.

       “An allegation that the verdict is against the weight of the evidence is

addressed to the discretion of the trial court.” Commonwealth v. Sullivan,

820 A.2d 795, 805-06 (Pa. Super. 2003) (citation omitted). However, “[t]he

trial court will only award a new trial when the jury’s verdict is so contrary to

the evidence as to shock one’s sense of justice.” Commonwealth v. Olsen,

82 A.3d 1041, 1049 (Pa. Super. 2013) (citation omitted). To meet this high



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4 When evaluating a challenge to the weight of the evidence to support a
conviction, this court does not reweigh the evidence presented at trial, but
rather evaluates the trial court’s denial of the motion for new trial for an abuse
of discretion. Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013).
An abuse of discretion occurs “where the course pursued represents not
merely an error of judgment, but where the judgment is manifestly
unreasonable or where the law is not applied or where the record shows that
the action is a result of partiality, prejudice, bias or ill-will.” Id. (citation
omitted). A trial court’s determination that the verdict was not against the
weight of the evidence is “[o]ne of the least assailable reasons for granting a
new trial.” Id. (citation omitted).

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burden, “the evidence must be so tenuous, vague and uncertain that the

verdict shocks the conscience of the court.” Commonwealth v. Akhmedov,

3443 EDA 2015, at *26 (Pa. Super. July 29, 2019) (en banc) (citation

omitted). In evaluating the verdict, this court does not independently assess

the credibility of the evidence, as this is purely within the province of the fact-

finder. Olsen, supra.

      Rivera’s argument is principally based upon discrepancies in the Victim’s

testimony at trial and the versions of events that she recounted to Officer

Bucklin, her co-worker, and the nurse who performed her rape kit.             See

Rivera’s Brief at 45. He argues that these three witnesses testified credibly,

but the Victim had told a different story to each of them immediately after the

events. Id. The discrepancies concern how the Victim ended up at Rivera’s

apartment after leaving her own, how long she was at each scene, and which

particular acts took place at each apartment. Id. at 48-49. He also points

out that the Victim did not immediately tell Officer Bucklin or the nurse that

she had been drugged by Rivera. Id. Further, the parties stipulated that the

samples of the fabric softener that were recovered from the floor in the

Victim’s apartment did not match the fabric softener found at Rivera’s

apartment. Id. at 50. He also argues that the evidence collected for the

purposes of the rape kit did not reveal any internal trauma or seminal material

on the Victim’s person, and that her bruising and cut lip were inconsistent with

the severity of the attack she described. Id. at 51, 54-55. Finally, he points


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out that forensic testimony did not reveal any DNA on the knives recovered

from Rivera’s apartment, even though the Victim testified that Rivera had

pressed one of the knives to her throat during the attack. Id. at 56.

      After careful review of the record, we agree with the trial court that the

discrepancies that Rivera has identified in the Victim’s testimony are minor,

and it was the proper function of the jury to resolve those discrepancies when

making    credibility   determinations.    Trial   court   opinion,   7/15/19,   at

unnumbered 10; Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011)

(citations omitted).    Further, while the rape kit did not reveal any internal

trauma or Rivera’s DNA, the jury could have credited the nurse’s testimony

that forcible rape does not always result in physical trauma, and that enough

time had passed between the assault and the rape kit to eliminate any DNA

evidence. (N.T. at 117, 120-21). The Victim’s testimony and the photos taken

of her injuries days after the assault further support the jury’s verdict. Finally,

even though no DNA was found on the knives and the fabric softener

recovered from Rivera’s home did not match that at the Victim’s apartment,

the jury was entitled to weigh the testimony and conclude that a knife and

fabric softener had been used in the attack. The trial court’s conclusions on

these matters are well supported by the record, and it did not abuse its

discretion in rejecting Rivera’s challenge to the weight of the evidence and

denying his motion for a new trial.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/26/2019




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