J-S64042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                          Appellee

                     v.

MOHD THEEB EID

                          Appellant                No. 3795 EDA 2015


           Appeal from the Judgment of Sentence November 23, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0001121-2015


BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:               FILED SEPTEMBER 28, 2016

      Mohd Theeb Eid (“Appellant”) appeals from the judgment of sentence

entered by the Court of Common Pleas of Delaware County, which, sitting as

finder of fact in Appellant’s bench trial, found him guilty on two counts of

Indecent Assault. We affirm.

      The trial court aptly sets forth the pertinent history of the case as

follows:

      On January 11, 2014, Paula Teti and her children went into the
      United Furniture Store located at 5300 Baltimore Pike in Clifton
      Heights, Delaware County, Pennsylvania to purchase furniture.
      While inside the store, she was helped by the assistant manager,
      Appellant, Mohammed Eid. She agreed to purchase a bed and
      loveseat and put her first deposit down on the furniture. N.T.
      9/1/15 at 6, 12.

     When Ms. Teti arrived home from the furniture store, the
     Appellant was in a black SUV at the foot of her driveway and he
     texted her. She asked how do you know where I live and he
*Former Justice specially assigned to the Superior Court.
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     responded that he obtained her address from her billing
     statement.   She told him he could not come inside.        The
     Appellant then drove his SUV down the street and left after 15
     minutes. N.T. at 12-13.

     Two weeks later, Ms. Teti went back to the furniture store to
     make a [layaway] payment and the Appellant reached his arms
     out and grabbed her breasts. "He kept nudging me in the
     breasts . . . I said 'Can you stop? . . . You're putting your elbow
     in my breast.' And he said no, I'm not. And then we continued
     on with the furniture." N.T. at 15, 19. Ms. Teti went to the
     store approximately 3 or 4 times to make payments on the
     furniture and "basically paid it all off because of what was
     happening." N.T. at 18.

     On the day the furniture was delivered to Ms. Teti's house, the
     two delivery men needed additional assistance because they had
     difficulty transporting the bed up the stairs. So, they contacted
     the Appellant. The Appellant came to the house and dismantled
     the headboard and broke it in the process. The delivery men left
     to retrieve the mattress from the store, and Ms. Teti and the
     Appellant were left alone upstairs except for her children playing
     nearby. The Appellant put the canopy on the bed and then he
     "grabbed my breasts again and he squeezed them. And then I
     grabbed the Defendant's both hands and i got him and I threw
     him down on the floor." N.T. at 23.

     Ms. Teti also testified to another incident at the store [when she
     returned after delivery to inquire about the store's intentions
     with respect to the damaged bed] :

     But there was an incident when he grabbed my breast in the
     store. I believe I like pushed him away from me. And I don't
     really -- I was trying to leave the store. I was trying to leave
     fast out of the store. And he put his hand between my legs and
     grabbed me between my legs. And I left the store. And I was
     so upset. I didn't know what to do. And I called the police.
     N.T. at 19.

     On or about March 11, 2014, Appellant was charged by the
     Upper Darby Police Department inter alia with the crimes of:
     Indecent Assault Without Consent (2 counts), Indecent Assault
     by Forcible Compulsion (2 counts), and Stalking.


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      ***
      On August 31, 2015, Appellant waived his right to a jury trial
      and proceeded to a nonjury trial before the undersigned. On
      September 1, 2015, the Appellant was found Not Guilty -- of
      Indecent Assault by Forcible Compulsion, counts 6 and 7, Not
      Guilty -- of Stalking, count 12, and Guilty -- of Indecent Assault-
      Without Consent, counts 1 and 2. [The Commonwealth did not
      go forward on the remainder of the charges].

      Prior to sentencing, the Court ordered a County Pre-Sentence
      Investigative Report and a psychiatric evaluation. On November
      23, 2015, the Court sentenced the Appellant [to one year county
      probation on counts one and two, respectively, for an aggregate
      two year county probationary sentence with the additional
      directives that Appellant have no contact with the victim and
      that he register on the Megan's Law registry.

      On December 18, 2015, Appellant filed a Notice of Appeal to the
      Superior Court of Pennsylvania from his Judgment of Sentence.
      On January 12, 2016, the Petitioner, through counsel, filed a
      [timely Pa.R.A.P. 1925(b) concise statement raising one issue
      directed to the sufficiency of the evidence to convict Appellant of
      Indecent Assault Without Consent].

Trial Court Opinion, filed February 18, 2016, at 1-4.

      Our standard of review in a sufficiency of the evidence challenge is

well-settled:

      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 [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

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       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. Tucker, ___ A.3d ____, 2016 PA Super 157 (filed

July 19, 2016) (citation omitted).1

       Specifically, Appellant challenges the sufficiency of the evidence to

support his convictions for indecent assault under 18 Pa.C.S. § 3126, which

provides, in relevant part, as follows:

       (a) Offense defined.—A person is guilty of indecent assault if
       the person 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:

       (1) The person does so without the complainant's consent.
____________________________________________


1
  Appellant conflates the distinct concepts of weight and sufficiency of the
evidence challenges in developing his sufficiency claim.           Specifically,
Appellant effectively advances a weight of the evidence claim where he relies
on the testimony of defense witnesses who contradicted Ms. Teti's account
to challenge the verdict. In this respect, he argues that both his own denial
of touching Ms. Teti and the testimony of his co-worker, Gilbert Musa, who
claimed he never observed inappropriate behavior and related that Ms. Teti
always insisted on dealing exclusively with Appellant fatally impeached Ms.
Teti's accusation. Because Appellant has not raised a weight of the evidence
challenge, however, we do not address this aspect of his argument. In any
event, the trial court correctly notes that mere conflicts in the testimony of
the witnesses do not render the evidence insufficient because it is within
province of the finder of fact to determine the weight to be given to
testimony. See Commonwealth v. O'Donnell, 740 A.2d 198, 203 n.4 (Pa.
1999).




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18 Pa.C.S. § 3126(a)(1). “Indecent Contact” is defined by section 3101 of

the Crimes Code as “[a]ny touching of the sexual or other intimate parts of

the person for the purpose of arousing or gratifying sexual desire in either

person.” 18 Pa.C.S. § 3101.

      The crux of Appellant's sufficiency claim is that the Commonwealth’s

chief witness, Ms. Teti, failed to supply credible testimony to substantiate

the charges against him. Other employees and customers on the storeroom

floor were always nearby, Appellant maintains, and Ms. Teti's own mother

and children were at the store on more than one occassion, and yet no one

testified to observing the acts alleged by Ms. Teti. In Appellant's view, "it

does not make sense that if, in fact, Ms Teti was assaulted as of the second

visit to the store, she would return on numerous occasions thereafter and

more importantly, would have this individual [Appellant] come to her home

to put together and set up furniture." Appellant's brief at 9. There were two

occasions when Appellant was at the victim's residence, but the police were

never called, he continues.    Overall, Ms. Teti's testimony was "scattered"

and "confused" as to both dates and events, Appellant posits, and,

therefore, insufficient to support the verdicts against him. Id.

      Here, the court, sitting as finder of fact, credited Ms. Teti's testimony

that Appellant had, on two separate occasions, touched her breasts and

reached between her legs without her consent. The court explained:

      I find the testimony of Ms. Teti to be credible. Clearly in
      anguish, clearly clear about the behavior that occurred and
      clearly in anguish over it.... I believe that the emotions that she

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      displayed on the stand were real; they were believable.... And I
      don't have a reasonable doubt about whether or not any
      indecent contact took place.

N.T. 9/1/15, at 171, 172.

      It is well-settled that the uncorroborated testimony of a sexual assault

victim, if believed by the trier of fact, is sufficient to convict a defendant.

See Commonwealth v. Andrulewicz, 911 A.2d162, 166 (Pa.Super. 2007).

Here, Ms. Teti's testimony, deemed credible by the finder of fact, was, as a

matter of law, sufficient under the law to support guilty verdicts under

Section 3126(a)(1).       See Commonwealth v. Richter, 676 A.2d 1232,

1236 (Pa.Super. 1996) (holding Section 3126 indecent assault established

by testimony that defendant placed hands under complainant's shirt and

fondled   her   against   her   wishes),   aff'd   711   A.2d   464   (Pa.   1998).

Accordingly, we discern no merit with Appellant’s sufficiency of the evidence

challenge.

     Judgment of sentence is affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/28/2016




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