J-S10002-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MAZEN F. SALFITI                           :
                                               :
                       Appellant               :   No. 1698 EDA 2018

              Appeal from the Judgment of Sentence May 23, 2018
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0003995-2017


BEFORE:      GANTMAN, P.J.E., STABILE, J., and COLINS*, J.

MEMORANDUM BY COLINS, J.:                               FILED MARCH 22, 2019

        Appellant, Mazen F. Salfiti, appeals from the judgment of sentence of

three to twelve months of confinement followed by three years of probation,

which was imposed after his conviction at a bench trial for indecent assault

without consent, harassment – subjects the other person to physical contact,

and indecent assault by forcible compulsion.1 We affirm.

        The facts underlying this appeal are as follows:

        The [V]ictim and Appellant knew each other from the [V]ictim’s
        prior employment at Wawa[, a convenience store].              N.T.,
        2/15/[20]18, at 35-44. On April 12, 2017, the [V]ictim, a senior
        at North Penn High School, exited the Wawa located in
        Towamencin, Montgomery County,             P[ennsylvania,]    after
        purchasing coffee on her way to school. [Id.] at 44. As the
        [V]ictim exited Wawa to walk to her car, Appellant, who was
        sitting outside Wawa in his minivan, called out to the [V]ictim by
        her nickname, and asked her to “come over...” [Id.] at 44-46.
____________________________________________


1   18 Pa.C.S. §§ 3126(a)(1), 2709(a)(1), and 3126(a)(2), respectively.


*    Retired Senior Judge assigned to the Superior Court.
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     To be polite, the [V]ictim approached Appellant and, stood outside
     his minivan. [Id.]

     According to the [V]ictim, there was small talk consisting of
     Appellant complimenting her and trying to get her to go out with
     him. [Id.] at 45. During their conversation, Appellant placed his
     hand on the back of the [V]ictim’s head, pulled her in through his
     window, tried giving her a kiss, and told her to open her mouth.
     [Id.] at 47-49[,] 62-63[; Ex. C-1 (DVD of surveillance footage
     from Wawa)]. Specifically, the [V]ictim testified that Appellant
     “was just trying to kiss me” and “kept just repeatedly saying open
     my mouth, give me a kiss”; and that Appellant’s “lips were on
     [her] lips,” “his tongue was on [her] lips, but [she] kept [her]
     mouth closed,” and that she felt “really uncomfortable.” N.T.,
     2/15/[20]18, at 51. Moreover, she testified that she “was pulling
     back, but he didn’t let me pull back.” [Id.] at 53.

Trial Court Opinion, filed July 23, 2018, at 4-5 (some formatting). During

cross-examination, the Victim’s testimony continued:

     Q.     It says in here, [in the Victim’s] statement to the police,
     which I’ll show you on page 2: “. . . He then refused to let go
     after I told him to stop and yelled.”

            What did you yell?

     A.     I did not yell. I did raise my voice to tell him to stop. . . .

     Q.   So the most contact that occurred between the two of you
     was his arm around you and his tongue touching your lips?

     A.     Yes.

     Q.     Which you did not want and pulled back?

     A.     Yes.

N.T., 2/15/2018, at 77, 79.

     On redirect, the Commonwealth asked the [V]ictim to read her
     handwritten statement given to police following the incident into
     the record. N.T., 2/15/[20]18, at 89. The [V]ictim read the
     following questions and answers into the record.

          Q: Did you feel violated after he kissed you without your
          consent?


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          A: Yes.

          Q: Did he give you another hug before you left?

          A: Yes.

          Q: Did you ever tell him to stop?

          A: I did when he was kissing me in the window of his car.

          Q: What did he say to you?

          A: He told me that no one has to know and no one will find
          out.

       [Id.]    Th[e trial c]ourt found the [V]ictim offered credible
       testimony establishing indecent contact, lack of consent, and
       forcible compulsion.

Trial Court Opinion, filed July 23, 2018, at 5-6 (some formatting).

       The trial court convicted Appellant of the aforementioned charges on

February 5, 2018, and sentenced him on May 23, 2018. On June 8, 2018,

Appellant filed this timely direct appeal.2

       Appellant presents the following issues for our review:

       1.    Was the evidence insufficient to support [Appellant]’s
       conviction for indecent assault - without consent pursuant to 18
       Pa.C.S. § 3126(a)(1) where the Commonwealth failed to establish
       the [Victim] did not consent?

       2.    Was the evidence insufficient to support [Appellant]’s
       conviction for indecent assault - forcible compulsion pursuant to
       18 Pa.C.S. § 3126(a)(2) where the Commonwealth failed to
       establish forcible compulsion?

       3.    Was the evidence insufficient to support [Appellant]’s
       conviction for harassment - physical contact pursuant to 18
       Pa.C.S. § 2709(a)(1) where the Commonwealth failed to establish
       [Appellant] possessed the requisite specific intent?
____________________________________________


2Appellant filed his statement of errors complained of on appeal on June 29,
2018. The trial court entered its opinion on July 23, 2018.


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Appellant’s Brief at 4 (suggested answers omitted).

     This Court’s standard for reviewing sufficiency of the evidence
     claims is as follows:

        We must determine whether the evidence admitted at trial,
        and all reasonable inferences drawn therefrom, when
        viewed in a light most favorable to the Commonwealth as
        verdict winner, support the conviction beyond a reasonable
        doubt. Where there is sufficient evidence to enable the trier
        of fact to find every element of the crime has been
        established beyond a reasonable doubt, the sufficiency of
        the evidence claim must fail.

        The evidence established at trial need not preclude every
        possibility of innocence and the fact-finder is free to believe
        all, part, or none of the evidence presented. It is not within
        the province of this Court to re-weigh the evidence and
        substitute our judgment for that of the fact-finder. The
        Commonwealth’s burden may be met by wholly
        circumstantial evidence and 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.

     Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super.
     2016) (quoting Commonwealth v. Tarrach, 42 A.3d 342, 345
     (Pa.Super. 2012)).

Commonwealth v. Izurieta, 171 A.3d 803, 806 (Pa. Super. 2017) (internal

brackets omitted).

                     Indecent Assault without Consent

     Appellant first contends that the evidence was insufficient to sustain his

conviction for indecent assault without consent, “where the record failed to

establish the [Victim] lacked consent.” Appellant’s Brief at 11. According to

Appellant:




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       [T]he [Victim]’s testimony, when viewed in the light most
       favorable to the Commonwealth, did not communicate a lack of
       consent to [Appellant] prior to the attempted kiss. . . . The
       [Victim] testified that [Appellant] pulled her in the vehicle by the
       back of her head, however, this is contrary to surveillance tape,
       as the [Victim] is raising on her toes, leaning into the vehicle to
       hug [Appellant] again at 4 minutes, 58 seconds, before what is
       allegedly [Appellant]’s hand on the right side goes toward the
       [Appellant]’s head at 4 minutes, 59 seconds.             See N.T.,
       2/15/[20]18, at 63, 77.

Id. at 12-13 (footnote omitted) (some formatting).

       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 the person does so without the complainant’s
       consent[.]

18 Pa.C.S. § 3126(a)(1) (some formatting).3

____________________________________________


3Appellant does not contest that the evidence was sufficient to establish that
he had indecent contact with the Victim. Appellant’s Brief at 12 n.5.

In its analysis of the sufficiency of the evidence to support Appellant’s
conviction for indecent assault without consent, the trial court opinion
references Commonwealth v. Capo, 727 A.2d 1126, 1127 (Pa. Super.
1999). Trial Court Opinion, filed July 23, 2018, at 3 n.1. Appellant contends:
“The instant case is unlike Capo, where the defendant challenged the
sufficiency of the evidence underlying conviction for indecent assault –without
consent on the grounds that his actions did not fall within the statutory
definition of an indecent contact[,]” while, in the current case, Appellant is
challenging the element of lack of consent. Appellant’s Brief at 14.

Appellant is correct that the appellant in Capo challenged the sufficiency of
the evidence establishing indecent contact and “does not and cannot claim
that his actions were performed with the victim’s consent.” 727 A.2d at 1127.
However, although the trial court’s citation to Capo was inapt, it is also non-
dispositive of the ultimate issue – i.e., whether the evidence at Appellant’s
trial was sufficient to establish the element of lack of consent. That is to say,



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       In the current action, viewing all “the evidence admitted at trial, and all

reasonable inferences drawn therefrom,” in the “light most favorable to the

Commonwealth as verdict winner,” Izurieta, 171 A.3d at 806, the Victim’s

explicit testimony that she did not want Appellant’s arm around her and his

tongue touching her lips while she kept her mouth closed, N.T., 2/15/2018,

at 51, 79, established that the Victim did not consent to Appellant’s contact.

18 Pa.C.S. § 3126(a)(1). The Victim’s lack of consent was underscored by

her repeated testimony that she attempted to pull away from Appellant and

was prevented from doing so by him. N.T., 2/15/2018, at 51, 79. The Victim

further testified that she felt “really uncomfortable,” and this Court has

previously found that a victim’s testimony about how an appellant’s acts made

her feel were sufficient to establish the victim’s lack of consent.          See

Commonwealth v. Velez, 51 A.3d 260, 266 (Pa. Super. 2012) (“viewing the

evidence in a light most favorable to the Commonwealth,” the victim’s

testimony that the “[a]ppellant’s acts were bad” and “did not feel right” and

that she was “afraid and angry at [a]ppellant” were sufficient to establish the

victim’s lack of consent). The Commonwealth did not need to present any

additional testimony on the element of consent besides the Victim’s testimony,

as a victim’s uncorroborated testimony alone can provide sufficient evidence

to establish that a defendant is guilty of indecent assault. See 18 Pa.C.S.
____________________________________________


even if we ignore the entirety of footnote 1 in the trial court opinion, Trial
Court Opinion, filed July 23, 2018, at 3 n.1, our affirmance of Appellant’s
judgment of sentence, including his conviction for indecent assault without
consent, would be unaltered.

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§ 3106 (“The testimony of a complainant need not be corroborated in

prosecutions under this chapter.”); see also Izurieta, 171 A.3d at 807;

Commonwealth v. Shaffer, 763 A.2d 411, 414 (Pa. Super. 2000);

Commonwealth v. Cody, 584 A.2d 992, 993 (Pa. Super. 1991).

      Furthermore, contrary to Appellant’s contention in his brief, see

Appellant’s Brief at 12, the Victim did not need to communicate her lack of

consent to Appellant prior to the indecent contact. See Izurieta, 171 A.3d

at 807 (evidence was sufficient to support the appellant’s conviction for

indecent assault without consent, when, after indecent contact, the victim

pushed away the appellant and told him that she did not want to “do this”);

cf. 18 Pa.C.S. § 3107 (“The alleged victim need not resist the actor in

prosecutions under this chapter”).

      As for Appellant’s argument that the trial court misconstrued the content

of surveillance video and what it showed about the Victim’s consent,

Appellant’s Brief at 13, Appellant is requesting that we “re-weigh the evidence

and substitute our judgment for that of the fact-finder[,]” which we cannot

and will not do. Izurieta, 171 A.3d at 806. “[A]ny doubts” regarding the

content of the surveillance video and what it showed about the Victim’s

consent were “to be resolved” by the trial court as “fact-finder” and not by

this Court. Id.

      Thus, Appellant has failed to establish that the evidence was insufficient

to support his conviction for indecent assault without consent.     Appellant’s

first issue therefore is meritless.

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                  Indecent Assault by Forcible Compulsion

       Next, Appellant argues that the evidence was insufficient to sustain his

conviction for indecent assault by forcible compulsion,4 “where the record

failed to establish forcible compulsion.”5 Appellant’s Brief at 15.6 Appellant

continues:     “The [Victim]’s testimony that [Appellant] pulled her into the

vehicle was belied by the surveillance video, which shows the [Victim] moving

toward the vehicle immediately prior to [Appellant] making physical contact

with her, and [the Victim]’s testimony that she was leaning into the vehicle to




____________________________________________


4      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 the person does so by forcible compulsion[.]

18 Pa.C.S. § 3126(a)(2) (some formatting).
5  “Forcible compulsion” is defined as: “Compulsion by use of physical,
intellectual, moral, emotional or psychological force, either express or
implied.” 18 Pa.C.S. § 3101.

The force necessary to establish “forcible compulsion” “need only be such as
to establish lack of consent and to induce the victim to submit without
additional resistance.” Commonwealth v. Farmer, 758 A.2d 173, 181 (Pa.
Super. 2000) (citations and internal brackets omitted); cf. Commonwealth
v. Jones, 771 A.2d 796, 799 (Pa. Super. 2001) (“force,” as defined for
robbery, is “that of which the victim is aware and by reason of that force, is
compelled to part with his property” (citations omitted)).
6 Again, Appellant does not contest that the evidence was sufficient to
establish that he had indecent contact with the Victim. See Appellant’s Brief
at 12 n.5; see generally id. at 15-17.


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give [Appellant] another hug.” Id. at 16 (citing N.T., 2/15/2018, at 63, 77;

Commonwealth v. Robinson, 817 A.2d 1153, 1158 (Pa. Super. 2003)).

       By asking us to re-interpret the surveillance video in a manner contrary

to the trial court, id., Appellant is again requesting that we “re-weigh the

evidence and substitute our judgment for that of the fact-finder[,]” which we

cannot and will not do.         Izurieta, 171 A.3d at 806.    In concluding that

Appellant “had indecent contact (kissing) with the [V]ictim by forcible

compulsion[,]” the trial court found, after listening to testimony and viewing

the surveillance video, that “Appellant plac[ed] his hand on the back of the

[V]ictim’s head, pull[ed] her in through his window, and [did] not let[] her

go[,]” then “tried giving her a kiss[] and told her to open her mouth.” Trial

Court Opinion, filed July 23, 2018, at 5-6 (citing N.T., 2/15/2018, at 47-49,

62-63). “[A]ny doubts” regarding the content of the surveillance video and

what it showed about Appellant’s use of force were “to be resolved” by the

trial court as “fact-finder” and not by this Court. Izurieta, 171 A.3d at 806.

For this reason, Appellant’s second issue is without merit.

                                      Harassment

       Finally, Appellant urges this Court to conclude that the evidence was

insufficient to sustain his conviction for harassment – subjects the other

person to physical contact,7 “where the record failed to establish [he]

____________________________________________


7Harassment – subjects the other person to physical contact is defined in its
entirety as follows: “A person commits the crime of harassment when, with



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possessed the requisite specific intent[,]” Appellant’s Brief at 17 – i.e., an

“intent to harass, annoy or alarm another[.]”        18 Pa.C.S. § 2709(a)(1).

Appellant continues that “the record fails to establish that [Appellant] knew or

should have known that a gradual increase in physical contact would harass,

annoy or alarm the [Victim].” Appellant’s Brief at 18 (emphasis in original)

(citation omitted).8

       “An intent to harass may be inferred from the totality of the

circumstances.”      Commonwealth v. Cox, 72 A.3d 719, 721 (Pa. Super.

2013) (citation omitted).



____________________________________________


intent to harass, annoy or alarm another, the person strikes, shoves, kicks or
otherwise subjects the other person to physical contact, or attempts or
threatens to do the same.” 18 Pa.C.S. § 2709(a)(1) (some formatting).
8  The trial court explained that it convicted Appellant of harassment, because
“the Commonwealth established beyond a reasonable doubt, based on the
totality of the circumstances, that Appellant intended to harass, annoy, or
alarm the [V]ictim by subjecting her to physical contact knowing the [V]ictim
was not interested in Appellant, felt uncomfortable, and repeatedly asked
Appellant to let her go.” Trial Court Opinion, filed July 23, 2018, at 6-7.
Appellant takes umbrage with this final statement, maintaining: “contrary to
the [trial] court’s opinion that the [Victim] ‘repeatedly asked [Appellant] to let
her go’, the [Victim] testified that she raised her voice and told [Appellant] to
stop, once, and he did.” Appellant’s Brief at 18 (quoting Trial Court Opinion,
filed July 23, 2018, at 7; N.T., 2/15/2018, at 77).

We note that nowhere in her testimony did the Victim state that she “told
[Appellant] to stop, once[.]” Id. (emphasis added). The Victim repeatedly
testified that she told Appellant to stop, but she never specified that she only
made this request one time. N.T., 2/15/2018, at 77. Thus, Appellant’s
description of the Victim’s testimony is inaccurate. Appellant’s Brief at 18.




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       In the current appeal, pursuant to the totality of the circumstances,

Cox, 72 A.3d at 721, the trial court could have reasonably inferred that

Appellant knew the Victim was not interested in him, felt uncomfortable, and

asked him to release her, and, accordingly, the court could have inferred

Appellant’s intent “to harass, annoy or alarm” the Victim.            18 Pa.C.S.

§ 2709(a)(1); Izurieta, 171 A.3d at 806; N.T., 2/15/2018, at 51, 77, 89;

Trial Court Opinion, filed July 23, 2018, at 6-7.9 Hence, the Commonwealth

has sustained its burden of proving the challenged element of the crime, and

Appellant’s final issue lacks merit.

       Based on the foregoing, Appellant is not entitled to relief.

       Judgment of sentence affirmed.




____________________________________________


9 Additionally, the requisite intent may be found where there is no evidence
of any purpose other than the harassment, annoyance, or alarming of the
Victim. Cox, 72 A.3d at 722 n.5. Appellant fails to suggest any other purpose
for his actions or otherwise explain his actions, see Appellant’s Brief at 17-
19; although, even if he had, the trial court, as fact-finder, still could have
chosen to disbelieve him and to have discerned a different intent from his
actions. See Commonwealth v. Hart, 559 A.2d 584, 587 (Pa. Super. 1989)
(“In addressing the proper interpretation of the statutory phrase ‘with intent
to harass,’” this Court noted that “[t]he law does not permit an actor to avoid
the consequences of his conduct by disclaimers of an intent to injure or harm
or offend or ‘harass.’ Rather, the law obliges the fact[-]finder to rely for the
discernment of intent upon demonstrative manifestation of that intent.”
(citation omitted)).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/22/19




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