J-S73039-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, :               IN THE SUPERIOR COURT OF
                              :                     PENNSYLVANIA
            Appellee          :
                              :
        v.                    :
                              :
KEITH EDWARD GALVIN, JR.,     :
                              :
            Appellant         :                No. 885 MDA 2017

            Appeal from the Judgment of Sentence May 4, 2017
               in the Court of Common Pleas of Berks County
            Criminal Division at No(s): CP-06-CR-0002429-2016

BEFORE: OLSON, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                   FILED JANUARY 04, 2018

      Keith Edward Galvin, Jr. (Appellant) appeals from the judgment of

sentence entered May 4, 2017, after he was found guilty of, inter alia, indecent

assault. We affirm.

      The trial court summarized the pertinent factual history as follows.

            On March 8, 2016, [B.G.] went to Lords and Ladies in
      Blandon, Berks County, Pennsylvania, for a massage. [B.G.] had
      a scheduled appointment for a massage which was given to her
      as a Christmas gift to help alleviate her neck and back pain. She
      was unable to select her massage therapist when she made her
      appointment. [B.G.] had never received a massage prior to this
      date.

             While at Lords and Ladies, [B.G.] met Appellant, her
      massage therapist, for the first time in the reception area when
      he handed her a health questionnaire to complete.          [B.G.]
      completed the paperwork and informed Appellant she was having
      pain in her neck and back areas. Prior to performing the massage,
      Appellant discussed the massage procedure with [B.G.] and also
      offered her aroma therapy and deep tissue massage. Appellant
      then requested that [B.G.] undress to her level of comfortability


* Retired Senior Judge assigned to the Superior Court
J-S73039-17


     and he exited the room. [B.G.] removed all of her clothes and lay
     on the massage table underneath a sheet. Appellant knocked and
     re-entered the room with [B.G.’s] permission.

           Appellant began the massage of [B.G.] with her arms and
     then around her neck and shoulders as she was lying on her back.
     Appellant pulled down the sheet covering [B.G.’s] breasts and
     began massaging her pectoral muscles. Appellant then proceeded
     to grope and fondle [B.G.’s] breasts. Appellant fondled both of
     [B.G.’s] breasts multiple times for approximately one minute
     without explanation to [B.G.]. At no time did [B.G.] consent to
     Appellant touching her breasts.

            Appellant left [B.G.’s] breasts exposed and then moved to
     [B.G.’s] right leg. As he was working on her leg, Appellant’s
     fingers brushed [B.G.’s] vagina two to three times. Appellant then
     moved his hand so that he was only rubbing [B.G.’s] vagina which
     lasted for one to two minutes. [B.G.] did not give Appellant
     consent to touch her vagina. After Appellant rubbed [B.G.’s]
     vagina, he asked twice if [B.G.] was comfortable but she did not
     respond. Appellant apologized to [B.G.] and stated that he
     doesn’t normally do that and he can do a lot of good in this world
     if [B.G.] doesn’t tell anyone about what had happened. Appellant
     then quickly finished [B.G.’s] massage without further incident.
     Appellant informed [B.G.] that if she would keep her mouth shut
     he would remove some of the add-ons from her receipt. [B.G.’s]
     receipt indicated that she was not charged for deep tissue
     massage. After [B.G.] left Lords and Ladies, she contacted her
     mother and informed her of what had occurred. [B.G.’s] mother
     called the police who instructed [B.G.], through her mother, to go
     to the strip mall parking lot across the street and wait for her
     father and the police to arrive.

           Officer Alan C. Shinkus of the Northern Berks Regional Police
     Department arrived in the parking lot with [B.G.’s] father. It took
     approximately 10 to 15 minutes for Officer Shinkus to arrive.
     Officer Shinkus observed that [B.G.] appeared visibly upset,
     distraught and looked like she had been crying when he arrived
     on scene. Officer Shinkus was with [B.G.] at the strip mall for
     approximately 5 or 10 minutes. Officer Shinkus had a brief
     discussion with [B.G.] about what had occurred and then
     instructed her to follow him back to the Northern Berks Regional
     Police Department where she was interviewed by Officer Shinkus.
     [B.G.] was very distraught during the interview.


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               Appellant was interviewed by Officer Officer Shinkus.
        Appellant denied fondling [B.G.’s] breasts but admitted to his
        knuckles rubbing against [B.G.’s] vagina as a result of a trip and
        fall that occurred during the massage.

Trial Court Opinion, 7/27/2017, at 2-4 (citations omitted).

        Following a bench trial, Appellant was found guilty of indecent assault

and harassment. On May 4, 2017, the trial court sentenced Appellant to three

to 23 months’ incarceration and a $400 fine. Appellant filed post-sentence

motions averring, inter alia, that the verdict was against the weight of the

evidence. The trial court denied Appellant’s post-sentence motions on May

15, 2017. Appellant then timely filed a notice of appeal.1

          On appeal, Appellant raises claims challenging the weight and

sufficiency of the evidence to sustain his indecent assault conviction.

Appellant’s Brief at 6.

        In reviewing Appellant’s sufficiency claim, we are mindful of the

following.

        [O]ur standard of review of sufficiency claims requires that we
        evaluate the record in the light most favorable to the verdict
        winner giving the prosecution the benefit of all reasonable
        inferences to be drawn from the evidence. 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. Nevertheless, the
        Commonwealth need not establish guilt to a mathematical
        certainty. Any doubt about the defendant’s guilt is to be resolved
        by the fact finder unless the evidence is so weak and inconclusive
        that, as a matter of law, no probability of fact can be drawn from
        the combined circumstances.

1
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.


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Commonwealth v. Lynch, 72 A.3d 706, 707-08 (Pa. Super. 2013) (internal

citations and quotation marks omitted). The Commonwealth may sustain its

burden by means of wholly circumstantial evidence, and we must evaluate the

entire trial record and consider all evidence received against the defendant.

Commonwealth v. Markman, 916 A.2d 586, 598 (Pa. 2007).

      A person commits the crime of indecent assault when “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 [] the person does so

without the complainant’s consent.” 18 Pa.C.S. § 3126(a)(1).

      The separate crime of indecent assault was established because
      of a concern for the outrage, disgust, and shame engendered in
      the victim rather than because of physical injury to the victim.
      Due to the nature of the offenses sought to be proscribed by the
      indecent assault statute, and the range of conduct proscribed, the
      statutory language does not and could not specify each prohibited
      act.

Commonwealth v. Provenzano, 50 A.3d 148, 153 (Pa. Super. 2012)

(citation omitted).

      Appellant contends the evidence was insufficient to sustain his

conviction because the Commonwealth failed to prove that Appellant “had

indecent contact with [B.G.] for the purpose of arousing sexual desire in either

one of them.” Appellant’s Brief at 18. Specifically, Appellant argues that




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      there is a factual dispute over the extent to which Appellant made
      contact with [B.G.’s] breasts.       Yet, viewing the light most
      favorable to the Commonwealth there is a legitimate purpose,
      besides sexual gratification or arousal, for some contact with
      [B.G.’s] breasts. The pectoral muscles surround the breast, and
      Appellant obtained consent to perform a pectoral massage
      because he believed it would be beneficial to [B.G.] in relieving
      pain and stress. Appellant disputes that [B.G.’s] breasts were
      exposed during the massage, but in the light most favorable to
      the Commonwealth, this fact amounts to a violation of
      professional standards, not a crime under the indecent assault
      statute.

            Likewise, there is a factual dispute as to the extent of
      contact Appellant had with [B.G.’s] vagina. In the light most
      favorable to the Commonwealth, contact with [B.G.’s] vagina was
      in the context of a massage of [B.G.’s] legs and gluteal muscles.
      Appellant was at no time told to stop the massage or stop a
      particular motion.    [B.G.] was completely nude and in a self-
      reported “state of panic” that left her unable to remember certain
      specific details. Vaginal contact during a massage is undoubtedly
      inappropriate and against professional standards, but it only
      amounts to the crime of indecent assault if the contact is for the
      purposes of sexual gratification. There is no evidence, direct or
      otherwise, of sexual gratification or arousal of either party, nor is
      there a basis for a reasonable inference of sexual gratification or
      arousal to be drawn.

Id. at 20-21 (citations omitted).

      The trial court responded to Appellant’s claim as follows.

             In the case at bar, Appellant does not dispute that he had
      indecent contact with [B.G.] but argues that his purpose was not
      for arousing sexual desire in himself and/or [B.G.]. At trial,
      Appellant testified that he had indecent contact with [B.G.] due to
      a trip and fall. However, th[e trial c]ourt disagrees. [B.G.] was in
      a position of vulnerability when lying on the massage table with
      only a sheet between her body and Appellant. Appellant took
      advantage of his position and fondled [B.G.’s] breasts for
      approximately one minute without [B.G.’s] consent. Appellant’s
      assault of [B.G.] continued as he proceeded with the massage of
      her right leg and brushed [B.G.’s] vagina two to three times with
      his fingers. Appellant then moved his hand so that he was only


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      rubbing [B.G.’s] vagina which lasted approximately one to two
      minutes and was also done without her consent. As stated by the
      Pennsylvania Superior Court in [Commonwealth v. Evans, 901
      A.2d 528, 533 (Pa. Super. 2006)] “such [acts do] not occur
      outside of the context of a sexual or intimate situation.”
      Appellant’s contact with [B.G.] was not accidental. The length of
      time Appellant spent touching [B.G.’s] breasts and vagina clearly
      indicated to th[e trial c]ourt that he intended to arouse sexual
      desire in himself and/or [B.G.]. Appellant’s actions were in no way
      consistent with his role as [B.G.’s] massage therapist.          As
      stipulated to by the parties, if the Commonwealth’s expert, Ms.
      Porambo, would have been called to testify, she would have
      rendered her professional opinion that Appellant acted
      inappropriately during the massage with respect to draping and
      inappropriate touch and did not act in accordance with the
      Professional Standards of Massage Therapy.

             Appellant’s conduct following the assault of [B.G.] is further
      evidence that he intended to arouse sexual desire in himself
      and/or [B.G.]. After Appellant had finished rubbing [B.G.’s]
      vagina, Appellant asked [B.G.] twice if she was comfortable but
      [B.G.] did not respond. He explained to [B.G.] that he doesn’t
      normally do this to his clients. Appellant attempted to remedy the
      situation when he offered an apology to [B.G.], explained how he
      can do a lot of good in this world, and removed the charge for
      deep tissue massage from [B.G.’s] bill so that [B.G.] would not
      tell anyone what had happened. It is evident to th[e trial c]ourt
      that Appellant knew his conduct was inappropriate and that he
      had victimized [B.G.] to arouse sexual desire in himself and/or
      [B.G.]. Appellant was hoping to mitigate the damage he had done
      and limit his personal exposure through his subsequent efforts to
      keep [B.G.] from disclosing what had just occurred. The evidence,
      accepted in the light most favorable to the Commonwealth,
      demonstrated the elements of [i]ndecent [a]ssault beyond a
      reasonable doubt. Appellant’s conviction for [i]ndecent [a]ssault
      should be upheld.

Trial Court Opinion, 7/27/2017, at 8-9 (citations omitted).

      We agree with the trial court’s conclusions.         The Commonwealth

presented evidence, including the testimony from B.G., which led the court to

conclude that the type of touching detailed by B.G. was not done as part of a


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properly-conducted massage. Despite the lack of “direct” evidence to support

a finding that the contact was made for the purposes of sexual arousal, the

trial court cited Appellant’s behavior and statements to B.G. as additional

proof that Appellant was aware of his inappropriate behavior and tried to

remedy the situation so B.G. would not disclose what had occurred.

Furthermore, the court posited that this inappropriate touching served no

legitimate professional purpose and that based on the type of touching and

length of time during which it occurred, the trial court concluded that the

inappropriate contact was made to arouse sexual desire in Appellant or B.G.,

without B.G.’s permission. Based on the foregoing, the testimony, if believed

by the fact-finder, was sufficient to sustain Appellant’s conviction.     See

Evans, 901 A.2d at 533 ( “[T]he act of wrapping one’s arms around another

person and inserting one’s tongue into another’s mouth clearly involves the

touching of an intimate part of that person. We agree with the Commonwealth

that such an act does not occur outside of the context of a sexual or intimate

situation.”). Appellant’s sufficiency challenge fails.

      Next, we begin our review of Appellant’s weight-of-the-evidence

argument by setting forth our standard of review.

      The decision of whether to grant a new trial on the basis of a
      challenge to the weight of the evidence is necessarily committed
      to the sound discretion of the trial court due to the court’s
      observation of the witnesses and the evidence. A trial court
      should award a new trial on this ground only when the verdict is
      so contrary to the evidence as to shock one’s sense of justice. …
      Our review on appeal is limited to determining whether the trial



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      court abused its discretion in denying the motion for a new trial
      on this ground.

Commonwealth v. Chamberlain, 30 A.3d 381, 396 (Pa. 2011) (citations

omitted). “Not merely an error in judgment, an abuse of discretion occurs

when 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 on record.” Commonwealth v. Handfield, 34

A.3d 187, 208 (Pa. Super. 2011) (quoting Commonwealth v. Cain, 29 A.3d

3, 6 (Pa. Super. 2011)).

      In support of his claim, Appellant argues that this case rested upon the

credibility of the testifying witnesses, and that B.G.’s

      testimony lacked the credibility necessary to establish that
      Appellant had indecent contact with her for the purpose of
      arousing sexual desire in the person or the complainant, without
      the complainant’s consent. … A proper reweighing of the evidence
      demonstrates that there is no credible evidence that Appellant
      intentionally touched [B.G.] inappropriately.

Appellant’s Brief at 25. Specifically, Appellant contends, inter alia, that B.G.:

(1) “admitted to suffering from anxiety, for which she was prescribed

Xanax[;]” (2)“consented to a pectoral and gluteal massage, regions close to

the breasts and genitalia” even though she never had a massage before; (3)

decided to completely undress; (4) had her eyes closed during the massage,

and therefore her allegations were based “on the sensation of touch alone[;]”

(5)did not request the massage to stop at any point; (6) responded “the entire




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thing” when asked after the massage had ended what her favorite part of the

massage was.2 Id. at 23-24

      In its 1925(a) opinion, the trial court offered the following:

      Appellant claims that th[e trial court’s] verdict was against the
      weight of the evidence. However, as set forth above in th[e trial
      court’s] analysis of the sufficiency of the evidence, the verdict was
      not contrary to the evidence as th[e trial c]ourt was presented
      with a case upon which to convict Appellant. Th[e trial c]ourt
      evaluated the evidence, determined the credibility of the
      witnesses and, when assessing the weight of the evidence,
      believed the evidence presented by the prosecution and rendered
      a guilty verdict. … [T]he verdict was consistent with the evidence
      presented and did not shock anyone’s sense of justice.

Trial Court Opinion, 7/27/2017, at 12.

      We discern no abuse of discretion in the trial court’s conclusion. 3 It is

well-settled that it is within the province of the fact-finder, to review the

evidence and assess the credibility of the testifying witnesses.              See

Chamberlain, 30 A.3d at 396 (“A motion alleging the verdict was against the

weight of the evidence should not be granted where it merely identifies

contradictory evidence presented by the Commonwealth and the defendant.”).




2
  B.G. admitted at trial that she had responded that the “entire” massage was
her favorite part, but explained that it was not true and she answered as such
in order “to get out of there as soon as [she] could.” N.T., 2/10/2017, at 49.
3 This was a non-jury trial. It is hard to see how a judge can be shocked by
his or her own verdict. See Commonwealth v. Walsh, (36 A.3d 613, 622 n.
5) (“Although we recognize that weight of the evidence claims have been
addressed in non-jury cases, there is a logical inconsistency in asking a trial
judge to conclude that her verdict shocked her own conscience.”).




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     Accordingly, after a thorough review of the record and briefs, we find

Appellant has presented no issue on appeal which would convince us to disturb

his judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/4/2018




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