J-S31004-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

WILLIAM FRANKLIN MITCHELL,

                            Appellant                  No. 1734 MDA 2014


         Appeal from the Judgment of Sentence Entered May 29, 2014
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0003085-2013


BEFORE: BENDER, P.J.E., ALLEN, J., and WECHT, J.

MEMORANDUM BY BENDER, P.J.E.:                            FILED JUNE 26, 2015

        William Franklin Mitchell (Appellant) appeals from the May 29, 2014

judgment of sentence of an aggregate term of 4 to 8 years’ incarceration

after being found guilty at a bench trial of sexual assault1 and corruption of

minors.2      Appellant now challenges the sufficiency and weight of the

evidence supporting his convictions and the trial court’s discretion in the

exclusion of certain evidence. After careful review, we affirm the judgement

of sentence.

        The trial court set forth a factual summary of this matter as follows:

             On the morning of May 1, 2013, [Appellant] exchanged
        messages with S.R. [the victim], with whom he was friends, and
____________________________________________


1
    18 Pa.C.S. § 3124.1.
2
    18 Pa.C.S. § 6301(a)(1)(ii).
J-S31004-15


     urged her to leave school to hang out with him, drink alcohol
     and smoke marijuana. S.R. agreed to leave school early and
     met [Appellant] at a bridge near the school. Before they met,
     [Appellant] asked S.R., “You are coming by yourself, right? Not
     with nobody else?” S.R. did not know they were going to Mr.
     Rivera’s [Appellant’s Co-Defendant at trial] home or that they
     would be renting a motel room.

           [Appellant] and S.R. walked to Mr. Rivera’s home, where
     they started drinking alcohol and smoking marijuana.          S.R.
     stated she drank approximately half a bottle of brandy and was
     intoxicated. At one point, [Appellant] left Mr. Rivera’s residence
     to get more alcohol, leaving S.R. alone with Mr. Rivera. Mr.
     Rivera began pressuring S.R. for oral sex, which made her feel
     uncomfortable, and she sent a message to [Appellant] telling
     him that Mr. Rivera was “creeping [her] out.”          [Appellant]
     replied, promising her he would take care of it.

           When [Appellant] returned to Mr. Rivera’s house, S.R. and
     Mr. Rivera left. Mr. Rivera purchased Xanax pills and rented a
     room at the Ephrata Motel, where S.R. thought they were going
     to drink. S.R. took some Xanax pills and was feeling intoxicated
     as a result of the alcohol, marijuana and Xanax. S.R. testified
     that while in the motel room, Mr. Rivera assaulted her, engaging
     in anal intercourse without her consent. As a result, she was
     physically hurt, bleeding and had fecal matter coming out of her.
     S.R. went into the small shower to clean up, and Mr. Rivera
     assaulted her again in the shower by forcing her to have oral
     intercourse with him.

          S.R. was seated on the floor in the corner of the shower
     with her head down when [Appellant] entered the bathroom.
     She testified that [Appellant] “forced [her] to do the same thing
     [have oral sex with him]” and engaged in anal intercourse with
     her. She testified that she was in pain and felt betrayed,
     powerless and used since she “was blocked in the shower with
     nowhere to go,” and that she did not tell [Appellant] to stop
     because “at that point [she] had given up.”

           S.R. left the bathroom to get her clothes, returned to the
     bathroom to get dressed and then returned to the room and sat
     on the bed, where Mr. Rivera assaulted her a third time. S.R.
     got dressed again and [Appellant] came back into the motel
     room with a third man, who tried to remove her clothing. When



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     the third man attempted to remove her clothing, S.R. resisted
     and left the motel room.

            During the course of the incident, S.R. had been sending
     text messages to Joseph Klepchick telling him what was
     happening. Mr. Klepchick met S.R. across the street after she
     left the motel room. When S.R. met Mr. Klepchick, she was
     crying and screaming at [Appellant] to get away from her.
     [Appellant], who was walking about 10 feet behind S.R., told Mr.
     Klepchick that “he wasn’t going to go down for this. He wasn’t
     going to go down for rape.” The next day, [Appellant] sent a
     text message to S.R. and apologized to her, stating “I didn’t
     think it would go down the way it did.”

          On cross-examination, S.R. admitted she voluntarily left
     school on May 1, 2013, to drink with [Appellant], and that she
     was not forced or threatened to drink, smoke marijuana, or
     consume Xanax.

           On May 2, 2013, after the incident was reported, police
     took photographs of the motel room and collected evidence,
     including the towels and bed linens. The shower in the motel
     bathroom was approximately three feet by three feet, but the
     entrance was partially blocked by the bathroom sink which
     protruded 17 inches from the wall. Blood and fecal matter were
     found on towels and S.R.’s jeans.

           On the same date, Kyle Wojiechowski, R.N., performed a
           3
     SAFE examination of S.R. at Lancaster General Hospital. He
     documented several injuries to her anal and genital regions
     consistent with her description of the assaults.
       3
         During a SAFE examination, a trained nurse examines
       and collects evidence from a person who reports being
       sexually assaulted.

           [Appellant] was interviewed by the Ephrata Borough police
     on May 7, 2013, May 21, 2013, and June 6, 2013. The audio
     recordings of these interviews were admitted into evidence and
     played during the course of the trial. During these interviews,
     [Appellant] admitted that he and Mr. Rivera plied S.R. with
     alcohol, marijuana and Xanax, and it was obvious that S.R. was
     intoxicated. [Appellant] also told the police he knew that Mr.
     Rivera had raped S.R., and that [Appellant] saw blood and fecal
     matter coming out of S.R. Despite this, he engaged in oral and
     anal sex with her while she was in the shower.

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Trial Court Opinion (T.C.O.), at 7-10.

       On March 6, 2014, at the conclusion of a bench trial, Appellant was

found guilty and sentenced as stated above. He was found not guilty on the

remaining eight counts against him.3             Appellant filed a timely notice of

appeal and complied with the trial court’s order to file a Pa.R.A.P. 1925(b)

statement. The trial court issued its Rule 1925(a) opinion on December 1,

2014. Appellant now presents the following issues for our review:

       I.     Was the evidence presented at trial insufficient to find
              Appellant guilty of the crimes of sexual assault and
              corruption of minors, a felony of the third degree where
              the victim gave no indication the sexual contact was not
              wanted and the Commonwealth established no course of
              conduct in violation of Chapter 31 (relating to sexual
              offenses)?

       II.    Alternatively, was the trial court’s finding that Appellant
              was guilty beyond a reasonable doubt of the crimes of
              sexual assault and corruption of minors against the weight
              of the evidence?

       III.   Did the court abuse its discretion by denying Appellant the
              ability to cross-examine the victim regarding her use of
              alcohol and Xanax together only four days after the
              incident in question?

____________________________________________


3
   Appellant was charged with two counts of involuntary deviate sexual
intercourse by forcible compulsion, 18 Pa.C.S. § 3123(a)(1); two counts of
involuntary deviate sexual intercourse by threat of forcible compulsion, 18
Pa.C.S. § 3123(a)(2); one count of rape by forcible compulsion, 18 Pa.C.S. §
3121(a)(1); one count of rape by threat of forcible compulsion, 18 Pa.C.S. §
3121(a)(2); one count of sexual assault, 18 Pa.C.S. § 3124.1; one count of
corruption of minors, 18 Pa.C.S. § 6301(a)(1)(ii); one count of unlawful
contact with a minor, 18 Pa.C.S. § 6318(a)(1); and one count of criminal
conspiracy, 18 Pa.C.S. § 903.



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Appellant’s Brief, at 4.

                           Sufficiency of the Evidence

      Appellant presents a sufficiency argument for each of the two offenses

which we shall address in turn. For the offense of sexual assault, Appellant

contends that both the consent and mens rea elements were insufficiently

established. Appellant also challenges the definition of the term “course of

conduct” as it applies to corruption of minors.

      We review Appellant’s challenge to the sufficiency of the evidence

under the following, well-settled standard of review:

      A claim challenging the sufficiency of the evidence is a question
      of law. Evidence will be deemed sufficient to support the verdict
      when it establishes each material element of the crime charged
      and the commission thereof by the accused, beyond a
      reasonable doubt. Where the evidence offered to support the
      verdict is in contradiction to the physical facts, in contravention
      to human experience and the laws of nature, then the evidence
      is insufficient as a matter of law. When reviewing a sufficiency
      claim the court is required to view the evidence in the light most
      favorable to the verdict winner giving the prosecution the benefit
      of all reasonable inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (internal

citations omitted).

                                 Sexual Assault

      The offense of sexual assault is defined in 18 Pa.C.S. § 3124.1, which

provides that, “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.”          The Commonwealth,



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therefore, was required to prove that Appellant had sexual intercourse with

S.R., that S.R. did not consent, and that Appellant acted intentionally,

knowingly or recklessly concerning S.R.’s lack of consent.4      That Appellant

and victim had sexual intercourse is not in dispute.

                                        Consent

       As to the element of consent, Appellant argues that no fact-finder

could reasonably have determined that the victim did not consent, given the

following version of events:

       Not only was there insufficient evidence to find beyond a
       reasonable doubt that S.R. did not consent to intercourse with
       Appellant, while not required, there is sufficient evidence to find
       that S.R. did consent [emphasis in original]. She voluntarily
       went to a hotel room. She went into the manager’s office to
       assist in the rental. She said nothing to the hotel manager. She
       voluntarily took off her own clothing. She engaged in sex with
       Mr. Rivera without objection, verbal or physical. She went to the
       shower and did the same. Appellant entered the shower and the
       two engaged in oral and anal intercourse, all without any
       objection. She never said to stop, she did not scream in pain,
       she never said no, she never tried to get away, she did not resist
       physically. Appellant made no threats toward her. Appellant
       used no physical force. Once outside the bathroom, and not
       “blocked in”, as the Commonwealth claims, she did not leave.
       S.R.’s first “nonconsent” came when a third man entered the
       room. She immediately said no, pushed him away, and left. It
       does not mesh to believe that five minutes earlier, when in
       control of her thoughts, S.R. makes no verbal or physical sign of
       nonconsent, but shortly thereafter shows her first sign of
____________________________________________


4
   See 18 Pa.C.S. § 302(a), which provides that mens rea must be
established with respect to each material element of the offense. See also
18 Pa.C.S. 302(c) (stating that when a statute remains silent as to the
degree of culpability required, such element is established if a person acts
intentionally, knowingly, or recklessly).



                                           -6-
J-S31004-15


      nonconsent and the event ceases. Likewise, to find S.R. “gave
      up” while with Appellant, would be to say that she had expressed
      some resistance or denial earlier.

Appellant’s Brief, at 15.

      This Court has construed silence, without more to suggest otherwise,

as evidence of consent.      “In rape prosecutions, evidence of the [alleged

victim]   should   be   carefully   considered   in   determining   whether   she

consented, and ordinarily proof of failure to make an outcry, offer resistance

and complain tends to show consent.” Commonwealth v. Goodman, 126

A.2d 763, 765-66 (Pa. Super. 1956).          Appellant asserts, “find[ing] that

sufficient evidence supported the trial court’s verdict would be to find that

any person, after any regrettable sexual encounter, could have her

counterpart convicted of sexual assault if she later decided that act was

unwanted.” Appellant’s Brief, at 16.

      However, the victim’s silence in this case was not the only evidence

related to consent.      This Court has long held that the uncorroborated

testimony of a sexual assault victim is sufficient to convict a defendant.

Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa. Super. 2006)

(citation omitted). Additionally, the fact-finder was free to rely entirely on

the victim’s characterization of the events when she said that she was

“forced,” indicating a lack of consent. Commonwealth v. Adrulewicz, 911

A.2d 162, 166 (Pa. Super. 2006). Equally important, it is not requisite that




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a victim actively resist in order for there to be a lack of consent. 18 Pa.C.S.

§ 3107.5 Finally, the victim provided the following version of events:

       Q:   When you say you had fecal matter coming out of you, can
       you tell me - - strike that. You stated you had gone into the
       shower. Can you tell me what happened next?

       A:   After I was in the shower for a little bit, then [Co-
       Defendant] came in and he forced me to have oral sex with him.

       Q:   After that happened with [Co-Defendant], can you tell me
       then what happened next?

       A:   I was sitting in the corner of the shower with my head
       down and then [Appellant] came in.

       Q:     And what happened after [Appellant] came in?

       A:     He forced me to do the same thing.

       Q:   When you say, he forced me to do the same thing, what
       do you mean?

       A:     Oral sex.

       Q:     Then what happened?

       A:    And then I got up, he turned me around then had anal sex
       with me.

N.T., at 24-26.

       S.R. provided more than just an attestation at trial that she did not

consent. When viewed in the light most favorable to the verdict winner, the

evidence shows that, after Co-Defendant sexually assaulted her, the victim
____________________________________________


5
  See 18 Pa.C.S. § 3107, which provides as follows: “The alleged victim
need not resist the actor in prosecutions under this chapter: Provided,
however, that nothing in this section shall be construed to prohibit a
defendant from introducing evidence that the alleged victim consented to
the conduct in question.”



                                           -8-
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retreated to the shower to clean herself of blood and excrement. After Co-

Defendant sexually assaulted her a second time, Appellant entered the

bathroom and “forced” himself upon her twice. It is reasonable to infer from

the testimony that the victim’s silence was not due to active participation.

Accordingly, we find the evidence sufficient to support the finding of lack of

consent.

                                       Mens Rea

       Appellant further contends that there was insufficient evidence of the

mens rea element. The Commonwealth was required to prove that Appellant

acted intentionally, knowingly or recklessly concerning S.R.’s lack of

consent.     Appellant argues that, “[e]ven if found there was sufficient

evidence to find that S.R. did not consent, it is clear from the preceding

recitation of facts that Appellant received no sign, signal, or indication,

verbal, or physical, of her nonconsent.” Appellant’s Brief, at 16.

       We recognize that sexual assault contemplates a form of rape where

force is not a factor.6 To establish the requisite intent, the Commonwealth

does not need to show force or affirmative resistance; rather, evidence that

____________________________________________


6
  18 Pa.C.S. § 3124.1 is a newly enacted statute, which was drafted in
response to the Pennsylvania Supreme Court’s decision in Commonwealth
v. Berkowitz, 641 A.2d 1161 (Pa. 1994). The statute is intended to fill the
loophole left by the rape and involuntary deviate sexual intercourse statues
by criminalizing non-consensual sex where the perpetrator employs little or
no force. Commonwealth v. Pasley, 743 A.2d 521, 523 n.3 (Pa. Super.
1999).



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Appellant disregarded a substantial risk that the victim did not consent to

the sexual activities is sufficient.7 With regard to this element, the trial court

found as follows:

       Despite knowing S.R. was extremely intoxicated and having seen
       the blood stain on the bed and the blood and fecal matter
       coming out of her body, [Appellant] nonetheless engaged in oral
       and anal intercourse with S.R. without her consent. S.R. was
       huddled on the floor in the corner of the three foot square
       shower stall when [Appellant] entered the shower, and she was
       blocked in the shower by the sink and by [Appellant]. S.R.
       explained she did not resist [Appellant] because she had “given
       up” after what had occurred with [Co-Defendant]. She also
       testified how she was in pain and felt betrayed and used by
       [Appellant].

T.C.O., at 10-11.

       As summarized by the trial court, when viewed in the light most

favorable to the verdict winner, the evidence establishes sufficient support

for the fact-finder to infer that Appellant disregarded the substantial risk that

the victim did not consent. Accordingly, we find the evidence sufficient to

support the verdict.

                                Corruption of Minors



____________________________________________


7
  “A person acts recklessly with respect to a material element of an offense
when he consciously disregards a substantial and unjustifiable risk that the
material element exists or will result from his conduct. The risk must be of
such a nature and degree that, considering the nature and intent of the
actor's conduct and the circumstances known to him, its disregard involves a
gross deviation from the standard of conduct that a reasonable person would
observe in the actor's situation.” 18 Pa.C.S. § 302(b)(3).



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       Appellant also contends that the evidence does not sufficiently prove

corruption of minors.8        The essence of Appellant’s argument is that the

necessary element, “course of conduct,” requires multiple actions, and that

the sexual assault at issue is singular in action.9

       In his brief, Appellant posits the following argument to support his

contention:

       A course of conduct is a “pattern of actions composed of more
       than one act over a period of time, however short, evidencing a
       continuity of conduct.” 18 Pa.C.S. § 2709(f). As discussed at
       length in Commonwealth v. Kelly, 102 A.3d 1025 (Pa. Super.
       2014), the term course of conduct requires multiple acts over
       time in violation of Chapter 31. In Kelly the defendant touched
       the genital of a minor while he bathed the minor. The Superior
       Court found this evidence to be insufficient to find defendant
       guilty beyond a reasonable doubt.

       Appellant engaged in one sexual encounter with S.R. in violation
       of Chapter 31. The encounter took place in the bathroom of the
       Ephrata Motel and lasted approximately 5-10 minutes. There
       was no evidence presented that suggested Appellant had
       encouraged S.R. to engage in any other sexual acts with Mr.
       Rivera. Conversely, the evidence established that Appellant was
       not around when the motel room was rented, did not provide
____________________________________________


8
  The elements of the offense are: first, that the defendant was eighteen
years old or older at the time of the crime; second, that the minor victim
was under eighteen years of age at the time of the crime; and third, that the
defendant corrupted or tended to corrupt the morals of the minor by
engaging in a course of conduct in violation of Chapter 31. 18 Pa.C.S. §
6301(a)(1)(ii).
9
  Appellant also argues that this offense must fail because it is contingent
upon a Chapter 31 violation which he avers was deficient. Because we find
sexual assault sufficiently proven, the argument that insufficiency of sexual
assault is tantamount to insufficiency of the corruption charge as well is
moot.



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       S.R. with any Xanax, and was not in the room for S.R.’s sexual
       interactions with Mr. Rivera.

Appellant’s Brief, at 17-18 (citations to the record omitted).

       In response, the Commonwealth points out that the Kelly court

allowed that the acts constituting a “course of conduct” may occur over a

short time span.        Appellee’s Brief, at 26.   Instead of constituting one

continuous act, the Commonwealth argues that the forced oral sex and

subsequent anal sex should constitute separate actions. Id., at 27.

       To distinguish the case at bar from Kelly, we agree with the

Commonwealth that Appellant engaged in two distinct acts of sexual

assault.10 Forcing S.R. to have oral sex with him constituted the first sexual

assault.   Forcing her to have anal sex with him, however short the time

between the acts may have been, constituted a distinct, second sexual

assault. That alone is enough to satisfy the “course of conduct” element of

the offense.     In addition, when viewed in the light most favorable to the

verdict winner, the record provides that Appellant encouraged the victim to

____________________________________________


10
   It was not requisite for Appellant to have been charged separately for
each act in order for the fact-finder to determine that distinct Chapter 31
offenses had occurred. “Inconsistent verdicts, while often perplexing, are
not considered mistakes and do not constitute a basis for reversal. Rather,
the rationale for allowing inconsistent verdicts is that it is the [fact-finder]'s
sole prerogative to decide on which counts to convict in order to provide a
defendant with sufficient punishment.” Commonwealth v. Stokes, 38
A.3d 846, 855 (Pa. Super. 2011) (citations omitted). “Thus, this Court will
not disturb guilty verdicts on the basis of apparent inconsistencies as long as
there is sufficient evidence to support the verdict.” Commonwealth v.
Petteway, 847 A.2d 713, 718 (Pa. Super. 2004).



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leave school, drink alcohol, and smoke marijuana, which culminated in

violations by both Co-Defendant and Appellant against the victim.          The

evidence thus sufficiently allows the trial court to adduce that Appellant

aided, abetted, enticed, or encouraged multiple violations of Chapter 31.

The element is therefore satisfied under either interpretation of Kelly.

Accordingly, we find the evidence sufficient to support the corruption of

minors verdict.

                          Weight of the Evidence

      Appellant challenges the weight of the evidence regarding the two

offenses. He avers that the trial court must have established the element of

lack of consent from the testimony of the SAFE nurse and the victim’s friend,

Joseph Klepchick, in direct contradiction to the testimony of the victim

herself. The SAFE nurse testified that the victim’s anal and genital regions

had sustained injuries consistent with her description. Mr. Klepchick testified

that Appellant had said, “He was not going down for rape.” It is Appellant’s

theory that this testimony goes impermissibly against the testimony of the

victim, that she specifically did not express lack of consent.

      We review Appellant’s challenge to the weight of the evidence

according to the following standards:

      The weight of the evidence is 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. An appellate court
      cannot substitute its judgment for that of the finder of fact.
      Thus, we may only reverse the lower court's verdict if it is so
      contrary to the evidence as to shock one's sense of justice.
      Moreover, where the trial court has ruled on the weight claim

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J-S31004-15


        below, an appellate court's role is not to consider the underlying
        question of whether the verdict is against the weight of the
        evidence. Rather, appellate review is limited to whether the trial
        court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (citations

omitted).

              “An abuse of discretion is not merely an error of judgment,
        but if in reaching a conclusion the law is overridden or
        misapplied,  or    the   judgment     exercised    is   manifestly
        unreasonable, or the result of partiality, prejudice, bias, or ill-
        will, as shown by the evidence or the record, discretion is
        abused.”

Commonwealth v. Stollar, 84 A.3d 635, 650 (Pa. 2014) (citations

omitted).

        As noted above, the uncorroborated testimony of the victim is

sufficient to convict.   Charlton, 902 A.2d at 562. Further, the fact-finder

was free to believe the victim independent of any other witnesses.

Andrulewicz, 911 A.2d at 166.         Additionally, the victim did not have to

express her lack of consent. 18 Pa.C.S. § 3107. Upon review of the record,

we do not find the SAFE nurse or Mr. Klepchick contradicted the victim’s

testimony.     Therefore, in order for us to conclude that the verdict was

against the weight of the evidence, the trial court’s decision must have been

due to partiality or prejudice.

        The verdict reveals no such abuse of discretion.       To the contrary,

finding Appellant not guilty of the other offenses signals a distinct lack of

bias.    Appellant was charged with rape by forcible compulsion, which

requires a finding of force.      The lesser included offense, sexual assault,


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J-S31004-15



requires no such showing.     Because the trial court interpreted the “force”

that the victim testified to as connoting a lack of consent rather than

denoting a use of force, Appellant was found guilty only of the lesser

included offense.    This use of discretion by the trial court compels us to

conclude that it actively considered the evidence presented and rendered its

judgment impartially.    Accordingly, we find the trial court did not err in

concluding that the verdict was not against the weight of the evidence.

                           Exclusion of Evidence

      Appellant contends that the trial court committed an abuse of

discretion by not allowing him to question the victim as to her use of alcohol

and Xanax a few days after the event at issue. He argues that this evidence

was important in showing that she had a history of alcohol and drug use and

that the use of the intoxicants days after the incident supports the

proposition that she consented to the acts.       Appellant is referencing the

following relevancy objection sustained during trial:

      Q. [Defense Counsel]: In fact, do you recall three days after
      this incident that - -

      [Assistant District Attorney]: Objection, Your Honor.   Relevance
      as to the time and date of the offense.

      [The Court]:            Your response []?

      [Defense Counsel]:     A big part of the Commonwealth’s case is
      going to be that she was drugged and drinking alcohol. And
      especially the use of alcohol with Xanax together, I think it’s
      important to establish this wasn’t the first time she drank and
      she knows what the effects of this are.

      [The Court]:             Does this incident afterwards involve
      your client or this other individual []?

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      [Defense Counsel]:      No, it doesn’t. It is a text message.

      [The Court]:            To whom?

      [Defense Counsel]:      To    neither    [Appellant]    or      [Co-
      Defendant].

      [The Court]:            You can ask her about her experience
      mixing these various substances, but what happened with other
      people I don’t see the relevance of that, especially if it is after
      the events in question.

      [Defense Counsel]:      Okay, Your Honor.

      [The Court]:            The objection is sustained.

N.T., 3/4/14, at 32-33.

      We apply the following standard of review: “Questions of the

admission and exclusion of evidence are within the sound discretion of the

trial court and will not be reversed on appeal absent an abuse of discretion.”

Commonwealth v. Kendricks, 30 A.3d 499, 503 (Pa. Super. 2011)

(citation omitted). “An abuse of discretion is not merely an error of

judgment, but the misapplication or overriding of the law or the exercise of a

manifestly unreasonable judgment based upon partiality, prejudice or ill

will.” Commonwealth v. Charleston, 16 A.3d 505, 526 (Pa. Super. 2011)

(citation omitted).

      Evidence is relevant if it has any tendency to make a fact more of less

probable than it would be without the evidence; and, the fact is of

consequence in determining the action. Pa.R.E. 401.

      First, the trial court did allow questioning of the victim regarding her

prior use of alcohol and Xanax. The evidence of her subsequent use does



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not tend to make that fact more or less probable.            Second, although

Appellant argues that this evidence goes to support the theory that the

victim was fabricating the lack of consent, there is nothing in the record

which leads us to conclude that this evidence would further that line of

inquiry. Finally, we note that the voluntariness of the victim’s intoxication is

not material to the case at bar. Consequently, we find that the trial court

did not abuse its discretion in excluding the evidence of intoxication after the

incident.

      For the foregoing reasons, we affirm the judgment of sentence.

      Judgment of sentence AFFIRMED.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/2015




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