J-S28033-19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :   IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                  Appellee                :
                                          :
          v.                              :
                                          :
JAVIER GODOY-RICO,                        :
                                          :
                  Appellant               :   No. 1782 MDA 2018

      Appeal from the Judgment of Sentence Entered August 24, 2016
                in the Court of Common Pleas of York County
           Criminal Division at No(s): CP-67-CR-0001598-2015

BEFORE:        BOWES, J., MCLAUGHLIN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                      FILED JUNE 28, 2019

      Javier Godoy-Rico (Appellant) appeals nunc pro tunc from the

judgment of sentence imposed following his convictions for sexual assault,

aggravated indecent assault, and simple assault. Upon review, we affirm.

      In April 2015, a criminal complaint was filed against Appellant,

charging him with, inter alia, the abovementioned crimes.      These charges

arose from a January 2015 sexual assault. Eventually, Appellant proceeded

to a jury trial. We set forth the trial court’s summary of the facts presented

at Appellant’s trial.

             The Commonwealth first called [T.A.], who was the victim
      in this case. In her testimony, [T.A.] described the events that
      occurred on January 25, 2015. On that night, [T.A.] had been
      working at Bourbon Bar & Grill. Once [T.A.] finished work, she
      stayed at Bourbon Bar & Grill to listen to a band that was playing
      there. [T.A.’s] friend, Fernando Rivera (“Rivera”), arrived with
      Appellant at Bourbon Bar & Grill to listen to the band. []


*Retired Senior Judge assigned to the Superior Court.
J-S28033-19


     Appellant, Rivera, and [T.A.] stayed until closing, around 2:00
     a.m., and there was supposed to be a party at Appellant’s house
     afterwards that [T.A.], Appellant, Rivera, and three other people
     were supposed to attend.

           To go to Appellant’s house, Appellant and [T.A.] drove
     together in [T.A.’s] car, while the rest took a separate car. [T.A.]
     and Appellant drove back to Appellant’s apartment, which was
     located above a business. Once Appellant and [T.A.] arrived at
     Appellant’s apartment, they sat on Appellant’s couch, and
     Appellant gave [T.A.] a beer, which [T.A.] may have had just a
     sip out of. No one else arrived at the apartment, but [T.A.]
     heard Appellant’s phone ring multiple times, which he did not
     answer.10     At no point did Appellant and [T.A.] have a
     conversation or understanding that it would be just the two of
     them at the apartment.
           ______
           10 The Commonwealth had called Detective Mark Baker, a

           criminal investigator with the Northern York County
           Regional Police Department, to testify. Detective Baker
           testified that he had received Appellant’s cell phone from
           Hanover Borough Police following and related to the
           incident. He testified that he had “perform[ed] an analysis
           of the cell phone pursuant to [ the] ... ongoing
           investigation,” and on January 25, 2015 from 2:18 a.m.
           until 2:25 a.m., he found that “there were six missed calls
           on [Appellant’s] phone from someone” that Appellant had
           designated in his phone as Fernando.

           On the couch, Appellant tried to kiss and touch [T.A.],
     making her nervous. Then, she asked [] where the bathroom
     was, and Appellant pointed out a doorway to her. She went to
     that doorway, but she realized it was to a bedroom, after
     entering through the doorway. When she turned around to leave
     the room, she found Appellant standing in the same doorway.

            [T.A.] attempted to move around Appellant, but he tried to
     shove her down. When she tried to get away from [] Appellant
     again, he grabbed her pants from behind her, and “basically had
     [her] pants already kind of at [her] ankles by grabbing [her]
     forcefully when [she] was trying to get away from him.”
     [Appellant] pushed her onto his bed, and “he was trying to
     shove his hands inside of [her. They] started fighting. [She]
     tried to fight him off.”

                                    -2-
J-S28033-19



     During this, [T.A.] tried to punch and scratch Appellant, despite
     not having [long] fingernails. Further, during the incident, [T.A.]
     testified that [] Appellant hit her head multiple times and pulled
     her hair. [T.A.] testified that Appellant’s fingers penetrated
     [T.A.] vaginally and anally.      Then, [T.A.] testified that she
     stopped fighting back when she realized she was not going to
     get away from him and cried through the rest of the incident.

            In addition, [T.A.] “kept telling [Appellant] that [she]
     needed to go home to her children,” but he did not stop. Before
     she stopped fighting back, [T.A.] told Appellant “Stop, no, I don’t
     want this,” and [T.A.] noted in her testimony that she said this
     in two different languages. Then, [T.A.] testified that Appellant
     penetrated her vaginally, orally and anally with his penis and
     that he “forcibly climbed on top of [her] chest, with his knees on
     top of [her] arms, his legs were open, and [her] arms were at
     his side, and then he tried to forcibly make [her] give him oral
     sex.” At no point did [T.A.] consent or indicate to Appellant that
     she wanted to participate in any form of sexual intercourse. After
     the incident ended, Appellant asked [T.A.] to take a shower, but
     she refused and was able to then go home.

            When the Commonwealth asked [T.A.] about her injuries
     that occurred as a result of the incident, [T.A.] testified that she
     had “lumps and bruises on [her] head. [She] had a bruise on
     [her] eye in the corner of [her] eye socket. [She] had scratch
     marks, bite marks, [and] bruises that happened immediately and
     bruises that showed up several days later.” [T.A.] also testified
     that the injuries to her head and eye occurred because Appellant
     punched her in the face when he initially pulled [her] pants down
     and got [her] on the bed ... when [she] started fighting him off
     of [her,] and [Appellant] fought [T.A.] back.” When [T.A.]
     arrived home, she tried to use her boyfriend’s cell phone to call
     the police, but he would not let her, and, so, she went to Turkey
     Hill [convenience store] to call the police.[1]


1
  There was testimony elicited from T.A. that when she arrived home her
boyfriend Alex was upset and demanded to know what had happened to her
before he would allow T.A. to use the phone to call police. N.T., 6/17/2015,
at 120. She decided “it wasn’t a good idea to tell Alex what happened at the
moment[,]” so she left the home and drove to Turkey Hill to contact the
police. On cross-examination, defense counsel read a portion of T.A’s

                                    -3-
J-S28033-19



            After [T.A.] testified, the Commonwealth called Sergeant
     Jason Byers (“Sergeant Byers”) and Officer Christine Mee
     (“Officer Mee”) to testify. Sergeant Byers and Officer Mee
     responded to the Turkey Hill that [T.A.] was at and they found
     her standing outside.        Sergeant Byers state[d] that [T.A.]
     appeared somewhat disheveled and upset. Similarly, Officer
     Mee described [T.A.] as looking “disheveled. Her hair was up,
     but kind of messed up. She just looked like she had been crying.
     Her eyes were kind of puffy, makeup was a little runny.”

           After receiving a description of the location [where] the
     incident occurred, [Sergeant] Byers went to the location, took
     pictures of the outside of the building and went back to [T.A.] to
     ask her if the pictures were of the attack’s location. [T.A.]
     confirmed it was the right location, and she described her
     attacker to Sergeant Byers as a “Hispanic male … wearing black
     diamond stud earrings.” After [T.A.] confirmed that it was the
     correct location, Sergeant Byers went back to the apartment
     with two search warrants. No one was in the apartment at the
     time.

           While Officer Mee and Sergeant Byers executed the search
     warrant on the apartment, another officer stood in the
     apartment building’s hallway and notified Sergeant Byers and
     Officer Mee that someone was in the hallway. When Sergeant
     Byers went into the hallway, he determined that [he saw]
     Appellant[, and identified him as] the suspect and detained him.
     Sergeant Byers took a photograph of [] Appellant at that time,
     who was wearing a black diamond square earring in his right
     ear, which matched [T.A.’s] description of her attacker.
     Appellant told Sergeant Byers that he was the only one in that
     apartment and that he had consensual intercourse with [T.A.].

           Then, the Commonwealth called Abigail Young (“Young”)
     to testify. On January 25, 2015, Abigail Young (“Young”) was a
     registered nurse and a sexual assault forensic examiner (also
     known as a “safe nurse”). On that same date, Young conducted
     a sexual assault exam on [T.A.] and wrote a report. In Young’s
     report [], she noted that [T.A.]:



statement to police, which stated that she told police that when she arrived
home, Alex had accused her of cheating on him. Id. at 122.

                                   -4-
J-S28033-19


             appear[ed] disheveled, wearing a black sweatshirt,
             T-shirt, and maternity jeans, with black shoes. Black
             T-shirt is torn at the left neck. Black bra is torn in
             the middle, and the black tank shoulder straps are
             stretched out. [T.A.’s] eyes are puffy and red; she
             appears to have been crying. Her hair is pulled up
             onto the top of head with a band, and the loose bun
             is clumpy.

             Young also testified that she wrote in her report [] that
      there was swelling and a raised area on the right side of [T.A.’s]
      face, which was also visible in a picture[.] … Then, Young
      testified that [T.A.] had the following injuries: bite mark patterns
      on the right side of [T.A.’s] neck …, abrasions on [T.A.]’s center
      back and lower back, scratch marks on [T.A.’s] neck and mid
      back …, and bruising inside [T.A.’s] rectum.

            Lastly, Appellant testified during trial. Appellant testified
      that he had consensual vaginal, oral and anal intercourse with
      [T.A.] and that he had also vaginally penetrated [T.A.] with his
      fingers.

Trial Court Opinion, 5/1/2018, at 3-10 (some quotation marks and footnotes

omitted).

      Following trial, Appellant was convicted of the aforementioned crimes,

and on August 24, 2016, the trial court sentenced Appellant to an aggregate

five to 10 years’ incarceration plus 30 days’ probation. Appellant timely filed

a post-sentence motion, which the trial court denied. Post-Sentence Motion,

8/31/2016.    This appeal followed.2,3   On appeal, Appellant challenges the


2 On September 23, 2016, Appellant timely filed a notice of appeal. On
November 22, 2016, this Court issued an order dismissing Appellant’s appeal
for failure to file a docketing statement pursuant to Pa.R.A.P. 3517. On
September 26, 2017, Appellant pro se filed a petition under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, averring counsel
had abandoned him and seeking the reinstatement of appellate rights, which
the PCRA court granted. Order, 1/22/2018.

                                     -5-
J-S28033-19

sufficiency and weight of the evidence to sustain his convictions. Appellant’s

Brief at 4.

        With respect to Appellant’s sufficiency claims, Appellant concedes that

there was sexual contact between Appellant and T.A. Appellant’s Brief at 12.

However, he contends that the testimony of the Commonwealth’s witnesses,

when considered along with his testimony, did not prove beyond a

reasonable doubt that the sexual contact was not consensual. See id. (“The

fact that sexual intercourse occurred is insufficient, in and of itself, to

support convictions for sexual assault and aggravated indecent assault.

Testimony regarding injuries was provided by both [T.A.] and [Young];

however, the cause of the injuries were [sic] less clear due to the testimony

of Appellant that [T.A.] left his apartment after their encounter without

injury and the evidence regarding [T.A.’s] boyfriend and his aggressive

response to her late night arrival.”).

        Our standard of review in challenges to the sufficiency of the evidence

is to determine

        whether, viewing all the evidence admitted at trial in the light
        most favorable to the [Commonwealth as 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

3
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.


                                         -6-
J-S28033-19


      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.

Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa. Super. 2015)

(citation omitted).

      A person commits 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. “[A] person who 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 commits aggravated indecent

assault if[,]” inter alia, “the person does so without the complainant’s

consent[.]” 18 Pa.C.S. § 3125(a)(1). “[A] person is guilty of assault if he:[]

attempts to cause or intentionally, knowingly or recklessly causes bodily

injury to another[.]” 18 Pa.C.S. § 2701(a)(1).

      At trial, T.A. testified that Appellant penetrated her vaginally, orally,

and anally with his penis and fingers without her consent. N.T., 5/9/2016,

at 91, 93, 95.        Specifically, T.A. testified that she attempted to fight

Appellant off of her, move away from him, and told him “no” several times,

in two different languages, all to no avail. Id. at 88, 90-92. T.A. testified

that throughout this encounter Appellant pulled her hair, hit her in the head

multiple times, and forced himself upon her. Id. at 94, 118. This testimony



                                      -7-
J-S28033-19

alone is sufficient to sustain Appellant’s convictions for sexual assault,

aggravated indecent assault and simple assault.         See Commonwealth v.

Charlton, 902 A.2d 554, 562 (Pa. Super. 2006) (“This Court has long-

recognized that the uncorroborated testimony of a sexual assault victim, if

believed by the trier of fact, is sufficient to convict a defendant, despite

contrary evidence from defense witnesses. If the factfinder reasonably could

have determined from the evidence adduced that all of the necessary

elements of the crime were established, then that evidence will be deemed

sufficient to support the verdict.”) (internal quotation marks and citations

omitted). It was within the province of the jury, as fact-finder, to believe

T.A.’s testimony that Appellant attacked, injured and sexually assaulted her,

and discredit the testimony of Appellant that the encounter was consensual

and T.A. left Appellant’s apartment unharmed. See Commonwealth v.

Miller, 172 A.3d 632, 642 (Pa. Super. 2017) (“Resolving contradictory

testimony and questions of credibility are matters for the finder of fact.”).

In light of the foregoing, Appellant’s sufficiency claims fail.

      We now turn to Appellant’s weight-of-the-evidence issue. In support

of his weight claim, Appellant avers “the jury gave inappropriate weight to

[T.A.’s] testimony.”    Appellant’s Brief at 15.      Specifically, Appellant (1)

attacks the veracity of T.A.’s testimony; (2) claims “T.A’s altercation with

her boyfriend upon her return home” called into question her testimony




                                       -8-
J-S28033-19

concerning her injuries; and (3) argues that the jury did not give adequate

consideration to Appellant’s testimony and version of events. Id. at 13-15.

             Appellate review of a weight claim is a review of the
      exercise of discretion, not of the underlying question of whether
      the verdict is against the weight of the evidence. Because the
      trial judge has had the opportunity to hear and see the evidence
      presented, an appellate court will give the gravest consideration
      to the findings and reasons advanced by the trial judge when
      reviewing a trial court’s determination that the verdict is against
      the weight of the evidence. One of the least assailable reasons
      for granting or denying a new trial is the lower court’s conviction
      that the verdict was or was not against the weight of the
      evidence and that a new trial should be granted in the interest of
      justice.

            However, the exercise of discretion by the trial court in
      granting or denying a motion for a new trial based on a
      challenge to the weight of the evidence is not unfettered. The
      propriety of the exercise of discretion in such an instance may be
      assessed by the appellate process when it is apparent that there
      was an abuse of that discretion.

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (internal

citations omitted).   See also Commonwealth v. Britton, 134 A.3d 83, 86

(Pa. Super. 2016) (“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.”) (citation omitted).    “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.” Commonwealth v. Chamberlain, 30 A.3d 381, 396

(Pa. 2011).




                                     -9-
J-S28033-19

      As the trial court correctly observed, it is within the province of the

jury, sitting as fact-finder, to review the evidence and assess the credibility

of the testifying witnesses.     See Trial Court Opinion, 5/1/2018, at 18

(finding Appellant’s weight-of-the-evidence claim without merit because “the

evidence was sufficient to support the convictions, and there is no

reasonable argument that the jury mis-weighed the evidence. It was within

the jury’s discretion whether to find the testimony of the witnesses

credible.”).   See also Commonwealth v. Williams, 854 A.2d 440, 445

(Pa. 2004) (“In criminal proceedings, the credibility of witnesses and weight

of evidence are determinations that lie solely with the trier of fact.”).

      In reviewing the issue before us, we reiterate that “[a]ppellate review

of a weight claim is a review of the exercise of discretion, not of the

underlying question of whether the verdict is against the weight of the

evidence.” Widmer, 744 A.2d at 753.

      The term ‘discretion’ imports the exercise of judgment, wisdom
      and skill so as to reach a dispassionate conclusion, within the
      framework of the law, and is not exercised for the purpose of
      giving effect to the will of the judge. Discretion must be
      exercised on the foundation of reason, as opposed to prejudice,
      personal motivations, caprice or arbitrary actions. Discretion is
      abused when the course pursued represents not merely an error
      of judgment, but where the judgment is manifestly unreasonable
      or where the law is not applied or where the record shows that
      the action is a result of partiality, prejudice, bias or ill will.

Id. (citation omitted).

      With this in mind, upon review of the record, we discern no abuse of

discretion in the trial court’s determination. Appellant has not alleged, and

                                     - 10 -
J-S28033-19

we do not conclude, that the trial court acted unreasonably, or displayed

prejudice, bias, or ill-will when dismissing Appellant’s weight claim. No relief

is due.

      Accordingly, after a review of the briefs, record, and applicable case

law, we are not persuaded that Appellant’s issues warrant relief from this

Court.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/28/2019




                                     - 11 -
