J-S57009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DENNISON REHM

                            Appellant                No. 1525 EDA 2014


          Appeal from the Judgment of Sentence November 25, 2013
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0001154-2013


BEFORE: MUNDY, J., OTT, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                        FILED NOVEMBER 23, 2015

        Appellant, Dennison Rehm, appeals from the November 25, 2013

judgment of sentence of four and a half to ten years’ incarceration, imposed

after a jury convicted Appellant of sexual assault, aggravated indecent

assault, and indecent assault.1 After careful review, we affirm.

        The trial court detailed the factual background leading to Appellant’s

convictions as follows.

                   On May 11, 2012, [J.G.] reported to the
              Pennridge Regional Police Department (“PRPD”) that
              she was raped by Appellant. The investigation was
              conducted by Detective Daryl Lewis of PRPD.

                    On Thursday, May 10, 2012, J.G. and a friend,
              [H.S.], went to sing karaoke at the Horse Tavern &
____________________________________________


1
    18 Pa.C.S.A. §§ 3124.1, 3125(a)(1), and 3126(a)(1), respectively.
J-S57009-15


          Grill in West Rockhill Township to celebrate the end
          of her spring semester at college. [H.S.]’s boyfriend
          drove J.G. and [H.S.] to the bar before it started at
          approximately 9:30 or 10:00, and the two stayed
          until karaoke finished later that night.        J.G.’s
          boyfriend was supposed to join them at karaoke, but
          did not meet the two women there. Still, J.G. and
          [H.S.] chose to stay at karaoke without J.G.’s
          boyfriend.

                Near the end of the karaoke session, J.G. and
          [H.S.] were joined by some of [H.S.]’s friends,
          including Appellant. J.G. and Appellant did not meet
          prior to that evening. The two interacted socially
          among the group of friends, with Appellant buying
          J.G. a drink while at the bar. J.G. possibly sat on
          Appellant’s lap at some point during the night;
          however, there was no other physical contact such
          as kissing, hugging, or her placing her arms around
          him.

                J.G., [H.S.], Appellant and two other friends
          then returned to [H.S.]’s boyfriend’s house after
          karaoke ended. After arriving back at the house,
          which was a two bedroom trailer, the group shared a
          celebratory shot together. At this point, [H.S.]’s two
          other friends left for the evening and her boyfriend
          went to sleep in another room. J.G. then went to
          sleep on a futon in the living room. After J.G. was
          asleep, [H.S.] set up a sleeping bag for Appellant
          which she placed in the living room near the futon.

                J.G. went to sleep alone, with her clothes on
          and hearing aid turned down, and did not consent to
          anyone touching her or having sex with her. She
          later awoke with her pants and underwear removed
          and with Appellant on top of her penetrating her
          vagina with his penis. J.G. told Appellant to stop and
          that she had a boyfriend. She tried calling to her
          friend in the other room for help, but Appellant used
          his hand to cover her mouth. Given Appellant’s
          heavier weight and the fact that she was still feeling
          the effects of the alcohol she consumed that
          evening, J.G. could not remove Appellant from on

                                  -2-
J-S57009-15


          top of her body. After Appellant stopped having sex
          with J.G., Appellant helped with her underwear and
          leggings and then went to bed. J.G. then passed out
          and went back to sleep on the futon.

                After waking up the next morning, J.G., [H.S.],
          and Appellant ordered pizza and other food, which
          J.G. did not eat much of. When Appellant left the
          house sometime in the early afternoon after eating,
          J.G. went to the bathroom and observed blood on a
          piece of toilet tissue that she had just used. Soon
          after, J.G. told [H.S.] what had happened the
          previous night, and J.G. then reported the incident to
          PRPD.

                 Detective Daryl Lewis of the PRPD conducted
          the investigation into J.G.’s claims against Appellant.
          The Detective transported J.G. to Doylestown
          Hospital for an exam, where [a specialized sexual
          assault nurse examiner] found evidence of multiple
          abrasions inside J.G.’s vaginal area that indicated
          blunt force trauma. Detective Lewis later conducted
          an interview with Appellant at Appellant’s residence.
          When asked about J.G., Appellant denied having any
          knowledge of her. After observing a photograph,
          Appellant still denied recognizing her or having sex
          with her. Appellant never contacted Detective Lewis
          to revise his statements and declined to give his DNA
          when asked, accusing the police of going on a
          “fishing expedition.”

                The Detective obtained a search warrant for
          Appellant’s DNA to test against the sample found on
          J.G.’s underwear that was preserved in the sexual
          assault kit. When Detective Lewis arrived to collect
          Appellant’s DNA in accordance with the search
          warrant, Appellant stated that he would not
          voluntarily give the Detective a sample of his DNA.
          Appellant did not resist when the Detective collected
          his DNA, but he continually maintained that he was
          not voluntarily giving his sample. On November 16,
          2012, Detective Lewis received the results of the
          DNA comparison from State Police, and Appellant
          was a match for the DNA recovered from J.G.’s

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J-S57009-15


            clothing. Appellant later admitted that he lied to
            Detective Lewis when questioned at his home.
            Appellant also contended that the sexual encounter
            was consensual, even going so far as to say J.G. not
            only instigated the encounter, but even acted
            “whorish” in their interactions.

                  Based upon the above evidence, the jury
            returned a guilty verdict on the charges of Sexual
            Assault, Aggravated Indecent Assault, and Indecent
            Assault.

Trial Court Opinion, 5/4/15, 2-5 (internal citations and footnote omitted).

      In his appeal to this Court, Appellant presents us with the following

two evidentiary issues.

            A. Should the Commonwealth have been permitted
               to elicit testimony that Appellant refused to
               voluntarily submit a DNA sample?

            B. Should defense witness, Dave Edelsberger, have
               been subject to cross examination on the topic of
               liquor code violations when they were not relevant
               to his credibility as a witness?

Appellant’s Brief at 4.

      We initially note that generally, a trial court’s ruling on the

admissibility of evidence will only be reversed upon a showing that the trial

court abused its discretion.   See, e.g., Commonwealth v. Buford, 101

A.3d 1182, 1195 (Pa. Super. 2014) (citation omitted), appeal denied, 114

A.3d 415 (Pa. 2015). In particular, an appellate court may reverse a trial

court’s ruling on the admissibility of testimonial evidence only upon a

showing that the trial court abused its discretion.      Commonwealth v.

Randall, 758 A.2d 669, 679 (Pa. Super. 2000). An abuse of discretion is


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J-S57009-15


more than just an error in judgment, and, on appeal, the trial court will not

be found to have abused its discretion unless the record discloses that the

judgment exercised was manifestly unreasonable, or the result of partiality,

prejudice, bias or ill-will. Commonwealth v. Randall, 758 A.2d 669, 679

(Pa. Super. 2000), appeal denied, 764 A.2d 1067 (Pa. 2001).

      In his first issue, Appellant asserts that his “refusal to comply with the

warrant for a DNA sample should not have been presented to the jury as

evidence of his guilt.” Appellant’s Brief at 11. Appellant maintains that “to

allow testimony on the topic of Appellant’s refusal to comply with a

Commonwealth search warrant unfairly penalizes Appellant’s good faith, if

misguided, exercise of constitutional protections.” Id.

      The testimony to which Appellant refers is as follows.

            COMMONWEALTH:         Mr.    Brocco,          you    are
            employed as a law enforcement                 officer in
            Montgomery County; is that correct?

            OFFICER BROCCO:         Yes.

            COMMONWEALTH:          And on or about August 27,
            2012, were you contacted by Detective Lewis here of
            the Pennridge Regional Police Department to contact
            [Appellant] regarding whether or not he would
            provide a DNA sample?

            OFFICER BROCCO:         Yes.

            COMMONWEALTH:          And did you, in fact, contact
            [Appellant] by phone to see if he would provide that
            sample?

            OFFICER BROCCO:         Yes, I did.


                                     -5-
J-S57009-15


            COMMONWEALTH:          And what was [Appellant’s]
            response to you regarding providing that sample?

            OFFICER BROCCO:       First it was, I didn’t have
            enough gas money to go up to Pennridge. And I
            provided him with a different meeting arrangement
            and he said that he wasn’t willing to help with their
            fishing expedition.

            COMMONWEALTH:           And    you         relayed     that
            information to Detective Lewis?

            OFFICER BROCCO:           I did later.

Appellant’s Brief at 12-13, citing N.T., 7/15/13, at 74-75.

      In   addition,   Appellant   references    the   following   testimony   from

Detective Lewis.

            COMMONWEALTH:          And describe the interaction
            between you and [Appellant] when you arrived at
            [Appellant’s] home to serve the search warrant?

            DETECTIVE LEWIS:        I arrived at the residence. I
            went up to a landing.         It is the second floor
            apartment.    His mother was on the landing.        I
            advised her that I need to speak to [Appellant]. She
            went inside and eventually [Appellant] came outside.
            I advised him that I had a search warrant to obtain a
            sample of his DNA.

            COMMONWEALTH:             What was his reaction to
            this?

            DETECTIVE LEWIS:         He advised that he was not
            going to voluntarily give me a DNA sample.

            COMMONWEALTH:           Did he use the term consent,
            voluntarily consent to a DNA sample?

            DETECTIVE LEWIS:          Correct.




                                       -6-
J-S57009-15


            COMMONWEALTH:         Did he give a reason as to
            why he would not consent to the DNA sample?

            DETECTIVE LEWIS:       He advised that his attorney
            had advised him that he did not have to give a
            sample pursuant to the search warrant.

            COMMONWEALTH:            Okay. And what did you tell
            [Appellant], if anything, at that point?

            DETECTIVE LEWIS:        I advised him the search
            warrant is a legal document that gives us a right to
            legally obtain the DNA sample.

            COMMONWEALTH:          And describe the rest of the
            interaction between you and [Appellant].

            DETECTIVE LEWIS:        At some point his mother
            went inside, came back outside and said she phoned
            their attorney and their attorney said that he should
            give the DNA sample. At that point again he said he
            was not going to voluntarily give consent or give up
            his DNA. I advised him that the search warrant
            states that we are entitled to it or we have a right to
            his DNA, and then he basically said that he was not—
            he was not resisting to give DNA, he was just not
            voluntarily giving it. At that point I put rubber
            gloves, latex gloves on my hand, opened up two
            swabs and I swabbed the inside of his mouth for the
            DNA.

Id., citing N.T., 7/15/13, at 27-28.

      Upon review, we conclude that the trial court did not abuse its

discretion in admitting the foregoing testimony, and has ably addressed this

issue in its opinion, referencing Pennsylvania Rule of Evidence 803(25) and

voluntary extrajudicial statements. See Trial Court Opinion, 5/4/15, at 10-

12.   The trial court determined that each of Appellant’s statements

“represents an admission by a party opponent and was validly admitted into

                                       -7-
J-S57009-15


evidence.”    Id. at 11.   In addition, the trial court concluded that “even if

Appellant’s statements refusing to voluntarily give DNA evidence are

protected by Pennsylvania law, they were still validly admitted into evidence

as Appellant’s counsel opened the door to their admission in her opening

statement.” Id. at 12. Accordingly, we discern no abuse of discretion by

the trial court, and adopt the trial court’s reasoning as our own in disposing

of Appellant’s first evidentiary issue. See Buford, supra.

      In his second evidentiary issue, Appellant argues that the trial court

erred in permitting his defense witness, Mr. David Edelsberger, who owns

the Horse Tavern & Grill, to be cross-examined about liquor code violations

“when they were not relevant to his credibility as a witness.”      Appellant’s

Brief at 20.    Appellant maintains that the “Commonwealth eclipsed the

bounds   of    permitted   impeachment      testimony   when   it   commenced

questioning on liquor code violations.” Id. Although Appellant cites Pa.R.E.

607, noting that “[t]he credibility of a witness may be impeached by any

evidence relevant to that issue, except as otherwise provided by state of

these rules,” he otherwise fails to develop his argument, citing only one

case, Commonwealth v. Robinson, 491 A.2d 107 (Pa. 1985), for the

general proposition that “bias, improper motive, and prejudice are fertile

grounds for impeachment of a witness’s credibility.” Id.

      The Commonwealth recognizes the deficiency of Appellant’s argument,

stating that Appellant’s “bald, unsupported statement does not serve to


                                      -8-
J-S57009-15


provide   him   with   a   meritorious   claim.   It   is   therefore   waived.”

Commonwealth Brief at 24. We agree.

     We recently detailed such waiver as follows.

           We need not reach the merits of [an] issue [where]
           the argument section of Appellant’s brief merely
           consists of general statements unsupported by any
           discussion and analysis of relevant legal authority.
           Pennsylvania Rule of Appellate Procedure 2119
           addresses the argument section of appellate briefs
           and provides, in part, as follows:

           Rule 2119. Argument

           (a) General rule. The argument shall be divided
           into as many parts as there are questions to be
           argued; and shall have ... such discussion and
           citation of authorities as are deemed pertinent.

           Pa.R.A.P. 2119(a).

           “The     Rules   of   Appellate   Procedure     state
           unequivocally that each question an appellant raises
           is to be supported by discussion and analysis of
           pertinent authority.” Estate of Haiko v. McGinley,
           799 A.2d 155, 161 (Pa. Super. 2002); Pa.R.A.P.
           2119(b). “Appellate arguments which fail to adhere
           to these rules may be considered waived, and
           arguments which are not appropriately developed
           are waived. Arguments not appropriately developed
           include those where the party has failed to cite any
           authority in support of a contention.” Lackner v.
           Glosser, 892 A.2d 21, 29–30 (Pa. Super. 2006)
           (citations omitted).   This Court will not act as
           counsel and will not develop arguments on behalf of
           an appellant. Irwin Union National Bank and
           Trust Company v. Famous and Famous and ATL
           Ventures, 4 A.3d 1099, 1103 (Pa. Super. 2010)
           (citing Commonwealth v. Hardy, 918 A.2d 766,
           771 (Pa. Super. 2007)). Moreover, we observe that
           the Commonwealth Court, our sister appellate court,
           has aptly noted that “[m]ere issue spotting without

                                     -9-
J-S57009-15


            analysis or legal citation to support an assertion
            precludes our appellate review of [a] matter.”
            Boniella v. Commonwealth, 958 A.2d 1069, 1073
            n. 8 (Pa. Cmwlth. 2008) (quoting Commonwealth
            v. Spontarelli, 791 A.2d 1254, 1259 n. 11 (Pa.
            Cmwlth. 2002)).

            Here, the argument portion of [Appellant]’s brief
            does not contain meaningful discussion of, or citation
            to, relevant legal authority. Appellant’s Brief at 19–
            21. While the portion of the argument pertaining to
            [Appellant]’s issue does contain reference to case
            law regarding contents of the certified record, this
            section completely lacks any discussion or developed
            analysis relevant to the issue. This lack of analysis
            precludes meaningful appellate review. Accordingly,
            … we conclude that the issue is waived.

Coulter v. Ramsden, 94 A.3d 1080, 1088-1090 (Pa. Super. 2014), appeal

denied, 110 A.3d 998 (Pa. 2014), cert. denied, Coulter v. Allegheny Cnty.

Bar Assoc., --- S. Ct. ---, 14-1316 (2015).

      Similarly, we find that Appellant in this case has failed to develop his

second issue, such that we are precluded from meaningful review, and the

issue is waived.

      In sum, we find no abuse of discretion by the trial court with regard to

the testamentary evidence challenged by Appellant in his first issue, and

deem Appellant’s second issue waived for lack of development.        We thus

affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.




                                    - 10 -
J-S57009-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/23/2015




                          - 11 -
                                                                                  Circulated 10/20/2015 11:47 AM




        IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
                             CRIMINAL DIVISION


    COMMONWEALTH                 OF PENNSYLVANIA              CP-09-CR-0001154-2013
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    DENNISON REHM                                                                                               ·,;'             .~,-~ .,,...
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                                                                                                                        <?
                                             OPINION                                                                    r ._)
                                                                                                                        :.:,r,

            Defendant Dennison Rehm (hereinafter "Appellant") appeals this Court's November 25,

    2013 Judgment of Sentence. We file this Opinion pursuant to Pennsylvania Rule of Appellate

    Procedure 1925(a).

    PROCEDURAL HISTORY

            On January 10, 2013, Pennridge Regional Police charged Appellant with Rape and

    related offenses. On July 16, 2013, a jury found Appellant guilty of Sexual Assault', Aggravated

    Indecent Assault', and Indecent Assault', convicting Appellant of all charges with the exception

    of Rape4. Sentencing was deferred for a Sexually Violent Predator Assessment by the Sexual

    Offenders Assessment Board.

           On November 25, 2013, Appellant was sentenced to serve not less than four and 011e half

(4 12) years, nor more than ten (I 0) years, in a State Correctional Institution. On March 31, 2014,

this Court held a hearing on Appellant's Motion for Reconsideration. Prior to the conclusion of




1
    18 Pa.C.S. §   3124.1.
218Pa.C.S.
               §   3125(a)(I).
3
    18 Pa.C.S. §   3126(a)(l).
4
    18 Pa.C.S. §   3l2l(a)(l).
                                                                                            Circulated 10/20/2015 11:47 AM




    the hearing, counsel for Appellant requested that this matter be denied as moot. On May 8, 2014,

    Appellant filed a timely Notice of Appeal to Superior Court.'

               On May 28, 2014, this Court issued a l 925(b) Order directing Appellant to file a Concise

    Statement of Matters Complained of on Appeal within twenty-one days. Appellant did not file

    such a statement. On July 18, 2014, this Court filed an Opinion with Superior Court. On

    February 4, 2015, Superior Court issued an Order remanding the case so that Appellant could file

    a Concise Statement and this Court could file a Supplemental Opinion pursuant to Pa.R.A.P.

    1925(a).

    FACTUAL BACKGROUND

               On May 11, 2012, Jazmine Gonzalez ("J.G. ") reported to the Pennridge Regional Police

    Department (11PRPD11) that she was raped by Appellant. The investigation was conducted by

    Detective Daryl Lewis of PRPD.

               On Thursday, May 10, 2012, J.G. and a friend, Holly Siffel, went to sing karaoke at the

    Horse Tavern & Grill in West Rockhill Township to celebrate the end of her spring semester at

    college. N.T. 07/12/13, pp. 10-11. Ms. Siffel's boyfriend drove J.G. and Ms. Siffel to the bar

before it started at approximately 9:30 or 10:00, and the two stayed until karaoke finished later

that night. N.T. 07/12/13, p. 12. J.G.'s boyfriend was supposed to join them at karaoke, but did

not meet the two women there. Still, J.G. and Ms. Siffel chose to stay at karaoke without J.G.1s

boyfriend. N.T. 07/12/13, pp. 13-14, 71-72.

               Near the end of the karaoke session, J.G. and Ms. Siffel were joined by some ofMs.

Siffel's friends, including Appellant. N.T. 07/12/13, pp. 13-14, 73-74. J.G. and Appellant did not

meet prior to that evening. The two interacted socially among the group of friends, with

5
 Apparently, there was a defect in the letter containing Notice of Appeal as it was missing numerous items. On
May 23, 20 l 4, we received a Docketing Order from the Superior Court, otherwise we did not know of the Appeal.
Hence the slight delay in our l 925 Order.

                                                        2
                                                                                    Circulated 10/20/2015 11:47 AM




 Appellant buying J.G. a drink while at the bar. J.G. possibly sat on Appellant's    lap at some point

 during the night; however, there was no other physical contact such as kissing, hugging, or her

 placing her arms around him. N.T. 07/12/13, pp. 15-16, 74-76.

          J.G., Ms. Siffel, Appellant, and two other friends then returned to Ms. Siffel's boyfriend's

 house after karaoke ended. After arriving back at the house, which was a two bedroom trailer,

 the group shared a celebratory shot together. At this point, Ms. Siffel's two other friends left for

 the evening and her boyfriend went to sleep in another room. J.G. then went to sleep on a futon

 in the living room. N.T. 07/12/13, pp. 18-19, 47, 77-78. After J.G. was asleep, Ms. Siffel set up a

 sleeping bag for Appellant which she placed in the living room near the futon. N .T. 07 /12/13,     pp.

77-79.

         J.G. went to sleep alone, with her clothes on and hearing aid turned down, and did not

consent to anyone touching her or having sex with her. She later awoke with her pants and

underwear removed and with Appellant on top of her penetrating her vagina with his penis. J.G.

told Appellant to stop and that she had a boyfriend. She tried calling to her friend in the other

room for help, but Appellant used his hand to cover her mouth. Given Appellant's heavier weight

and the fact that she was still feeling the effects of the alcohol she consumed that evening, J.G.

could not remove Appellant from on top of her body. N.T. 07/12/13,        pp. 20-23, 49. After

Appellant stopped having sex with J.G., Appellant helped with her underwear and leggings and

then went to bed. J.G. then passed out and went back to sleep on the futon. N.T. 07/12/13, pp.

24-25.

         After waking up the next morning, J.G., Ms. Siffel, and Appellant ordered pizza and

other food, which J.G. did not eat much of. When Appellant left the house sometime in the early

afternoon after eating, J.G. went to the bathroom and observed blood on a piece of toilet tissue



                                                   3
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    that she had just used. N.T. 07/12/13,   pp. 26-28, 80-81. Soon after, J.G. told Ms. Siffel what had

    happened the previous night, and J.G. then reported the incident to PRPD. N.T. 07/12/13, pp. 29-

    30, 82-84.

            Detective Daryl Lewis of PRPD conducted the investigation into J.G.'s claims against

    Appellant. The Detective transported J.G. to Doylestown Hospital for an exam, where SANE6

    Nurse Susan Taylor found evidence of multiple abrasions inside J.G.'s vaginal area that indicated

    blunt force trauma. N.T. 07/12/13, pp. 213-15, 219-24. Detective Lewis later conducted an

    interview with Appellant at Appellant's residence. When asked about J.G., Appellant denied

    having any knowledge of her. After observing a photograph, Appellant still denied recognizing

her or having sex with her. Appellant never contacted Detective Lewis to revise his statements

and declined to give his DNA when asked, accusing the police of going on a "fishing

expedition." N.T. 07/15/13, p. 75.

           The Detective obtained a search warrant for Appellant's DNA to test against the sample

found on J.G.'s underwear that was preserved in the sexual assault kit. N.T. 07/15/13, pp. 23-24.

When Detective Lewis arrived to collect Appellant's DNA in accordance with the search warrant,

Appellant stated that he would not voluntarily give the Detective a sample of his DNA.

Appellant did not resist when the Detective collected his DNA, but he continually maintained

that he was not voluntarily giving his sample. N.T. 07/15/13, pp. 26-28. On November 16, 2012,

Detective Lewis received the results of the DNA comparison from State Police, and that

Appellant was a match for the DNA recovered from J.G.'s clothing. N.T. 07/15/13, p, 29.

Appellant later admitted that he lied to Detective Lewis when questioned at his home. Appellant

also contended that the sexual encounter was consensual, even going so far as to say J.G. not


6
 A "Sexual Assault Nurse Examiner" is a specialized nurse who collects evidence and documents injuries for law
enforcement when a sexual assault victim arrives in the emergency room for treatment. N.T. 07/12/13, pp. 182-83.

                                                        4
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only instigated the encounter, but even acted "whorish" in their interactions. N.T. 07/15/13,          pp.

 119-20,        154.

            Based upon the above evidence, the jury returned a guilty verdict on the charges of

Sexual Assault, Aggravated Indecent Assault, and Indecent Assault. The Defendant was found

not guilty of Rape.

STATEMENT                   OF MATTERS COMPLAINED           OF ON APPEAL

           Pursuant to Pa.R.A.P.      1925(b), Appellant filed a Concise Statement of Matters

Complained of on Appeal on March 24, 2015.             Appellant's Statement raised the following issues,

verbatim:

           1.          The Appellant was convicted following a jury trial in the above-captioned case on

July 16, 2013, and thereafter sentenced on November 25, 2013, to 4 1/2 to 10 years of

incarceration.

           2.          On appeal your Appellant will raise the following issues:

                       a.      The Court erred in permitting evidence that the Appellant refused to

voluntarily submit a DNA sample.

                       b.      The Court erred in permitting Complainant's mother, Michelle Rosario, to

testify that the Complainant was upset and did not tell her about the incident until Monday, May

13, 2013.

                       c.      The Court erred in permitting the testimony of Joseph Borraco, who is

identified as a Montgomery County Law Enforcement Officer, to testify that he contacted the

Appellant to request that he submit a DNA sample and Appellant responded that he would not
                                             11
cooperate with a "fishing expedition.




                                                        s
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                 d.      The Court erred in permitting the prosecutor to cross-examine bar owner,

 Dave Edelsberger, [sic] with respect to liquor code violations.

                 e.      The Court erred in sustaining the District Attorney's objection to the

testimony of character witness, Jamie Mall, [sic] for Appellant's reputation for being peaceful

and non-violent when she proceeded to explain the opinion of the community to include, inter

alia, "wouldn't hurt a fly. 11

                 f.      The verdicts were against the weight of the evidence inasmuch as the

Complainant exhibited flirtatious behavior with the Appellant in the time leading up to the

alleged sexual assault and did not report the alleged assault until after the Appellant had rebuked

her overtures. Further, no witnesses present in the home at the time of the alleged assault testified

to hearing any sort of commotion.

ANALYSIS

        I.       Sufficiency of the Evidence

        Appellant contends that the evidence presented at trial was not sufficient to sustain the

jury's verdict. We demonstrate herein that the Commonwealth presented sufficient evidence to

the jury to prove beyond a reasonable doubt that Appellant committed the crimes of which he

was convicted.

        The Pennsylvania Supreme Court has articulated that the well-settled standard of review

in judging the sufficiency of the evidence is whether, when viewing the evidence in a light most

favorable to the Commonwealth as the verdict winner and drawing the proper inferences

favorable to the Commonwealth, the trier of fact could reasonably have found that all of the

elements of the crime were established beyond a reasonable doubt. Commonwealth v. Hagan,




                                                   6
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654 A.2d 541, 543 (Pa. 1995);       Commonwealth v. Heberling, 678 A.2d 794, 795 (Pa. Super.

 1996). The Superior Court has elaborated:

           In applying [the above] test, we may not weigh the evidence and substitute our
          judgment for that of 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. Ventrini. 734 A.2d 404, 406-07 (Pa. Super. 1999) (citations omitted).

"Furthermore,    it is well-established   that even the uncorroborated testimony of the complaining

witness is sufficient to convict a defendant of sexual offenses." Commonwealth v. Bishop, 742

A.2d 178, 189 (Pa. Super. 1999).

          Clearly, in finding Appellant guilty of Sexual Assault, Aggravated Indecent Assault, and

Indecent Assault, the jury believed the testimony of the Commonwealth's witnesses and accepted

the Commonwealth's evidence to the extent it established beyond a reasonable doubt the

elements of these offenses. Based on the foregoing facts and in viewing the facts most favorable

to the Commonwealth as verdict winner, it is apparent that the Commonwealth presented

sufficient evidence to the jury to prove beyond a reasonable doubt that Appellant committed the

offenses.

          A person is guilty of Sexual Assault "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.


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        The evidence in the light most favorable to the Commonwealth was sufficient to support

the jury's finding that sexual intercourse occurred between Appellant and J.G. The jury heard the

testimony of J.G. in which she detailed Appellant engaging in sexual intercourse with her. N.T.

07/12/13,   pp. 21-22. Further, Appellant admitted to engaging in intercourse with J.G. in his

testimony and further admitted that he had lied when he initially denied any such sexual contact

in his interview with Detective Lewis. N.T. 07/15/13, p. 119. Lastly, evidence was also presented

that Appellant's DNA matched the bodily fluids found on J.G.'s underwear that she wore the

night in question. 07/15/13,   p. 29. The evidence supported the jury finding that sexual

intercourse occurred between J.G. and Appellant.

        In addition, the evidence was sufficient for the jury to find that Appellant engaged in

intercourse with J.G. without her consent. First, J.G. testified that after a night out with friends,

she retired to Ms. Siffel's house and went to sleep on a futon in the living room. She further

recalled that she awoke during the night to find Appellant on top of her, penetrating her vagina

with his penis. J.G. testified that she attempted to call for help, but Appellant covered her mouth

with his hand. She confirms that she did not consent to any such sexual contact with Appellant at

any point during or before the attack. N.T. 07/12/13, pp. 20-23. The testimony of Nurse Taylor

indicated that J.G. suffered internal abrasions to her vaginal area that were indicative of blunt

force trauma, which she has seen in only an estimated five percent of exams that she has

conducted. Ms. Taylor confirmed that her physical examination of J.G. revealed findings that

were consistent with J.G. 's account of that evening. N.T. 07/12/13, pp. 213-15, 219-24.

Conversely, Appellant testified at trial that the sexual contact was consensual, and J.G. instigated

the encounter. N.T. 07/15/13, pp. 119, 152-54. Viewed in light most favorable to the




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Commonwealth as verdict winner, the evidence was sufficient to sustain Appellant's conviction

for Sexual Assault.

        A person is guilty of Aggravated Indecent Assault Without Consent if he "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         ...

without the complainant's   consent."   18 Pa.C.S. § 3125(a)(l).

       The evidence discussed above, which was sufficient to sustain Appellant's conviction for

Sexual Assault, was also sufficient to sustain his conviction for Aggravated Indecent Assault.

The testimony heard during the trial and the physical evidence recovered from the scene of the

attack both support the jury's finding that penetration of the genitals of J.G. occurred without

J.G. 's consent, and Appellant engaged in such penetration for a purpose "other than good faith

                                                        11
medical, hygienic or law enforcement procedures.

       A person is guilty oflndecent Assault Without Consent if he "has indecent contact with

the complainant, causes the complainant to have indecent contact with the person or intentionally

causes the complainant to come into contact with seminal fluid, urine or feces for the purpose of

arousing sexual desire in the person or the complainant," and he does so "without the

complainant's consent." 18 Pa.C.S. § 3 l 26(a)(l). Indecent contact is "[a]ny touching of the

sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual

desire, in any person." 18 Pa.C.S. § 3101. "[I]t is clear from section 3101 's plain meaning that

'indecent contact' occurs when there is proscribed contact with the female or male genitals."

Commonwealth v. Ca20, 727 A.2d 1126, 1129 (Pa. Super. 1999).

       The evidence discussed above, which was sufficient to sustain Appellant's conviction for

Sexual Assault and Aggravated Indecent Assault, was also sufficient to sustain his conviction for



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 Indecent Assault. The testimony heard during the trial and the physical evidence recovered from

 the scene of the attack both support the jury's finding that Appellant engaged in indecent contact

 with J.G. without her consent.

        II.     Evidentiary Issues

        In his matters complained of on appeal, Appellant raises four claims concerning the

 admission of evidence at his trial. We begin our analysis by noting that the Pennsylvania

 Supreme Court has consistently held that the admission of evidence at trial is addressed to the

sound discretion of the trial court, and such evidentiary rnlings will not be disturbed absent an

abuse of that court's discretion. See Commonwealth v. Champney, 832 A.2d 403, 416 (Pa.

2003); Comll}onwealth v. Ragan, 645 A.2d 81 r, 818 (Pa. 1994). Each of Appellant's claims will

be discussed herein.

               A. DNA Sample

        In his first and third matters complained of on appeal, Appellant argues that evidence of

his statements to police officers that he would not voluntarily submit to DNA testing was

wrongfully admitted.

        In Pennsylvania, it is clearly established that an admission by an opposing party can be

used as substantive evidence. Pa.R.E. 803(25); Alessandro v. W.C.A.B. (Precision Metal

Crafters, LLC}, 972 A.2d 1245, 1252 (Pa. Cornrow. Ct. 2009). Moreover, "voluntary

extrajudicial statements made by a defendant may be used against a defendant even though they

contain no admission of guilt. The extrajudicial statements, which differ from confession in that

they do not acknowledge   all essential elements of a crime, are generally considered to qualify for

introduction into evidence under the admission exception to the hearsay rule." Com. v. Kitchen,

730 A.2d 513, 519-20 (Pa. Super. 1999) (citations omitted).



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        Appellant seems to argue, however, that making statements refusing to voluntarily give

DNA evidence is akin to a defendant asserting his right against self-incrimination.   The right

against self-incrimination,   which is set forth in the Fifth Amendment to the United States

Constitution, "protects an accused only from being compelled to testify against himself, or

otherwise provide the state with evidence of a testimonial or communicative nature.

Pennsylvania appellate courts have held that Article I, section 9 of the Pennsylvania Constitution

offers a protection against self-incrimination identical to that provided by the Fifth Amendment."

Commonwealth v. Conway, 534 A.2d 541, 546 (Pa. Super. 1987). More specifically,

Pennsylvania courts have held that the "right against self-incrimination prohibits use of a

defendant's pre-arrest silence as substantive evidence of guilt, unless it falls within an exception

such as impeachment of a testifying defendant or fair response to an argument of the defense."

Com. v. Molina, 104 A.3d 430, 451 (Pa. 2014).

        In the case sub judice, the evidence at issue is two statements that Appellant made to

police officers refusing to give a DNA sample on the advice of prior counsel. When Officer

Brocco contacted Appellant by phone to request he voluntarily give a sample of his DNA,

Appellant responded that he would not help the police with their "fishing expedition."

Furthermore, when Detective Lewis attempted to execute a search warrant for Appellant's DNA,

Appellant told the Detective that he would not relinquish his DNA voluntarily. Appellant did not

resist the Detective, but maintained throughout the process that he was not acting in a voluntary

manner.

       Each of these statements represents an admission by a party opponent and was validly

admitted into evidence. Pennsylvania law provides protections for a defendant's pre-arrest

silence and any statements asserting that right. However, the right against self-incrimination only



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protects against evidence of a "testimonial or communicative nature," not a defendant's     right to

not comply with search warrants or turn over physical evidence. Appellant's     statements refusing

to submit a DNA sample are not analogous to a defendant's statements asserting a

Constitutionally-protected   right.

        Alternatively, even if Appellant's statements refusing to voluntarily give DNA evidence

are protected by Pennsylvania law, they were still validly admitted into evidence as Appellant's

counsel opened the door to their admission in her opening statement. "Where defense counsel

opens the door to commentary on the defendant's pre-arrest silence, there is no Fifth Amendment

proscription precluding the raising of that silence in fair response to defense argumentation.

Commonwealth v. Adams, 39 A.3d 310, 320 (Pa. Super. 2012) affd, 104 A.3d 511 (Pa. 2014)

(citations omitted). Appellant' s counsel referenced Appellant's statements in her opening

remarks, stressing that prior counsel advised Appellant to refuse the police access to his DNA

sample. In making these comments to the jury, Appellant's counsel's tactical decision opened the

door to the Commonwealth exploring these statements further. As such, it was not an abuse of

this Court's discretion to admit testimony concerning Appellant's    voluntary statements into

evidence.

                B. Liquor Code Violations

        Appellant complains that this Court abused its discretion by allowing the Commonwealth

to cross-examine Mr. Adelsberger concerning past liquor code violations. This issue will be

discussed below.

        Pa.R.E. 607(b) permits the credibility of a witness to be "impeached by any evidence

relevant to that issue, except as otherwise provided by statute or these rules." Pa.R.E. 40 l further

provides that evidence is relevant so long as it has any tendency to make a fact of consequence in



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determining the litigation more or less probable than it would be without such evidence.

Additionally, Pa.R.E. 403 permits a trial court to exclude otherwise relevant evidence so long as

"its probative value is outweighed by a danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence."

       The investigating officers in this case were not able to receive a copy of the security

camera footage from the night in question from Mr. Adelsberger, owner of the Horse Tavern &

Grill. Mr. Adelsberger testified that his security camera video footage only lasts for five days

before new footage is recorded over the old tapes, thereby destroying the formerly recorded

footage. Evidence of past liquor code violations,    which would include serving visibly intoxicated

individuals, suggests to the jury that the bar has a history of such conduct. It also suggests that

Mr. Adelsberger could have withheld those security tapes as they could have showed over-

intoxicated patrons being served alcohol. This evidence has a tendency to show that J.G. may

have been overly intoxicated on the night of the attack, as the bar has a history of possibly over-

serving patrons and the security footage from that night might have showed her in an overly

intoxicated and vulnerable state. Additionally, admitting the evidence does no prejudice to

Appellant. As such, we submit that this Court did not abuse its discretion in admitting this

evidence.

               C. Rosario's Testimony

       As stated above, Pa.R.E. 40 I provides that "evidence is relevant if it has any tendency to

make a fact more or less probable than it would be without the evidence; and the fact is of

consequence in determining the action."




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        Michelle Rosario, J.G.'s mother, testified that J.G. did not tell her of the attack until the

 Monday after it occurred. She further testified that on Mother's Day that prior Sunday, she could

 tell that JG. was not acting like herself, seeming quiet and distant. This evidence has a tendency

 to show that JG. could have possibly been emotionally impacted by the attack, which would

 suggest that it was not a consensual encounter. However, the appropriate weight to give that

evidence was for the jury to decide. This Court did not abuse its discretion in admitting this

relevant and non-prejudicial   evidence.

                D. Moll Character Evidence

        Appellant's fifth matter complains of this Court's decision to sustain an objection to

Appellant's character witness, Jamie Moll. This issue will be discussed herein.

        Pa.R.E. 405(a) permits the admission of evidence concerning a person's reputation,

providing "when evidence of a person's character or character trait is admissible, it may be

proved by testimony about the person's reputation. Testimony about the witness's opinion as to

the character or character trait of the person is not admissible."

        Appellant specifically references an objection to Ms. Moll's testimony that Appellant

"wouldn't hurt a fly." However, the Commonwealth did not make any objection to this

testimony. The Commonwealth did object to a portion of Ms. Moll's testimony where, in

reference to Appellant, she explained, ''I trust him. I trust him around my six year old son." N.T.

07/15/13, p. 92. This Court sustained the Commonwealth's objection to that answer as it was

testimony of the witness's personal opinion of Appellant's character, which Pa.R.E. 405(a)

deems is inadmissible.




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CONCLUSION

       For the foregoing reasons, this Court perceives that the issues of which Appellant has

complained in this appeal arc without merit, and that this Court's November 25, 2013 Judgment

of Sentence was supported by both the Jaw and the record in this case. We respectfully request

the Superior Court to affirm this Court's decision.




                                                      BY THE COURT:


                                                       /~~
                                                      liffkr t v ~~-
                                                      WLLACEH. BATEMAN, JR. J.
