J-S57028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    DAVID ELIJAH WARD                          :
                                               :
                       Appellant               :      No. 109 EDA 2018


          Appeal from the Judgment of Sentence September 21, 2017
                in the Court of Common Pleas of Bucks County
              Criminal Division at No.: CP-09-CR-0007977-2016


BEFORE:      PANELLA, J., PLATT*, J., and STRASSBURGER*, J.

MEMORANDUM BY PLATT, J.:                            FILED NOVEMBER 28, 2018

       Appellant, David Elijah Ward, appeals from the judgment of sentence

imposed following his jury conviction of two counts of indecent assault. 1 We

affirm.

       The trial court aptly provided the factual and procedural background in

its February 2, 2018 opinion:

              . . . On July 21, 2016, at approximately 8:55 P.M., H.R.
       visited Hand and Stone Spa in Fairless Hills, PA (“Hand and
       Stone”) for a massage appointment. H.R. had previously received
       one massage, not from Appellant, at this Hand and Spa location,
       as well as one other massage in her life. After H.R. arrived,
       Appellant introduced himself and led H.R. to the massage room,
       which contained a massage table with sheets. Appellant directed
       H.R. to undress to her underwear and lie face down on the table[,]

____________________________________________


1 18 Pa.C.S.A. § 3126(a)(1).     The jury found Appellant not-guilty of
aggravated indecent assault. See 18 Pa.C.S.A. § 3125.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S57028-18


     under the blanket. H.R. undressed but left the bottom portion of
     her underwear on during the massage.

           During the massage, Appellant first began working on H.R.’s
     upper back towards her shoulders. While H.R. was still lying face
     down on the massage table, Appellant began working toward
     H.R.’s lower back in a way that H.R. felt was “a little bit too low
     on top of my butt” compared to previous massages she had
     experienced. (N.T. Trial, 4/19/17, at 109). H.R. did not respond
     verbally or physically to this action, but testified that she “wanted
     to give [Appellant] the benefit of the doubt”. (Id.). After finishing
     with H.R.’s back, Appellant instructed H.R. to switch from lying on
     her stomach to lying on her back.

           Appellant eventually began working on the lower portion of
     H.R.’s body. While applying pressure to H.R.’s left leg, Appellant
     slid his hand under H.R.’s left buttocks and made a grabbing
     motion as he placed his right hand on her left thigh. H.R. again
     did not respond verbally or physically, but testified to her
     discomfort at that moment. Appellant subsequently moved to
     H.R.’s right leg, and after working up to H.R.’s right thigh[,] placed
     one hand underneath her buttocks. As he did, Appellant began to
     rub the exterior of H.R.’s vagina in a circular motion with his right
     hand. Appellant performed this action briefly on top of H.R.’s
     underwear before inserting his hand underneath her underwear.
     Eventually Appellant penetrated H.R.’s vagina with his fingers.
     During this period[,] Appellant moved his left hand from her
     buttocks and began touching her breasts above the sheets,
     pinching the nipples. H.R. estimated that this experience lasted
     approximately five minutes.

            During this experience, H.R. did not respond or resist []
     Appellant’s actions. H.R. testified that she felt shocked, confused,
     and scared, and did not know what Appellant would do if she
     attempted to stop him. H.R. further stated that she did not believe
     she could overpower Appellant. H.R. confirmed that she did not
     desire or expect Appellant’s actions and had never encountered
     similar actions at any other massage. H.R. also testified she felt
     “slightly violated” after the massage. (Id. at 121).

           After finishing the massage, Appellant left the room. . . .
     [She] then paid and left Hand and Stone and proceeded to call her
     boyfriend, [R.L.], informing him of her experience. H.R. returned
     to her residence, showered, and . . . [R.L.] drove himself and H.R.

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     to the Falls Township Police Department. At th[e] police station .
     . . Detective Stephen Reeves spoke with H.R. [].

                                   *    *    *

            [Complainant] E.M. first received a massage from Appellant
     on July 14, 2016[, which] seemed “fairly normal” compared with
     the approximately [ten] previous massages she had received[.] .
     . . E.M. then made an appointment for July 28, 2016, to receive a
     [second] massage from Appellant.

            . . . [O]n July 28, 2016, [when] E.M. arrived at Hand and
     Stone, . . . Appellant instructed E.M. to disrobe to her comfort
     level[.] . . . E.M. accordingly removed all of her clothing. . . . While
     massaging E.M.’s right leg, Appellant moved his hands higher on
     the thigh than E.M. had experienced in her past massages.
     Appellant then began rubbing the outside of E.M.’s genitals in a
     circular motion. E.M. testified that this contact was “[a]bsolutely
     not” a mere brush or passing moment. (N.T. Trial, 4/20/17, at
     81). E.M. shifted her hips to indicate her discomfort, at which
     point Appellant asked if she were uncomfortable and E.M.
     affirmed. Appellant apologized and then moved the hand which
     had come in contact with her genitals to the middle of her thigh
     before finishing the massage.

           E.M. testified that she felt “[s]cared to death” during
     Appellant’s actions. (Id. at 82). . . . Following the massage, . . .
     E.M. paid and left Hand and Stone[.]

(Trial Court Opinion, at 1-3) (most record citations omitted; record citation

formatting provided).

     On April 21, 2017, at the conclusion of a three-day trial, the jury

convicted Appellant of two counts of indecent assault. On August 14, 2017,

the court sentenced Appellant to an aggregate term of not less than four nor

more than twenty-three months’ incarceration, with credit for time-served.

Appellant timely filed a post-sentence motion. On September 21, 2017, the

court granted that portion of the motion seeking additional credit for time-

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served, and, on November 29, 2017, it denied the remainder of his post-

sentence motion after a hearing. Appellant timely appealed.2

       Appellant raises five questions for this Court’s review:

       I.    Whether the trial court erred in overruling defense counsel’s
       Batson[3] challenge when the Assistant District Attorney struck
       Juror Number 23[?]

       II.  Whether the trial court erred in denying defense counsel’s
       motion for a mistrial[?]

       III. Whether the evidence was insufficient to sustain the verdict
       of guilt for both counts of indecent assault where the
       Commonwealth failed to prove beyond a reasonable doubt
       Appellant possessed the requisite mens rea[?]

       IV.   Whether the verdict was against the weight of the
       evidence[?]

       V.    Whether the sentencing court erred in sentencing Appellant
       to an aggravated range, aggregate sentence and failed to put
       specific reasons for doing so on the record[?]

(Appellant’s Brief, at 5-6).

       In his first claim, Appellant maintains that “[t]he Assistant District

Attorney violated Batson . . . when she struck Juror Number 23 and the trial

court erred when it overruled defense counsel’s challenge.” (Id. at 9). We

disagree.

       A Batson claim presents mixed questions of law and fact.
       Therefore, our standard of review is whether the trial court’s legal
____________________________________________


2 Pursuant to the trial court’s order, Appellant filed a concise statement of
errors complained of on January 22, 2018. The court filed an opinion on
February 2, 2018. See Pa.R.A.P. 1925.

3   Batson v. Kentucky, 476 U.S. 79 (1986).

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      conclusions are correct and whether its factual findings are clearly
      erroneous.

            In Batson, the [Supreme Court of the United States] held
      that a prosecutor’s challenge to potential jurors solely on the basis
      of race violates the Equal Protection Clause of the United States
      Constitution. When a defendant makes a Batson challenge during
      jury selection:

                   First, the defendant must make a prima facie
            showing that the circumstances give rise to an
            inference that the prosecutor struck one or more
            prospective jurors on account of race; second, if the
            prima facie showing is made, the burden shifts to the
            prosecutor to articulate a race-neutral explanation for
            striking the juror(s) at issue; and third, the trial court
            must then make the ultimate determination of
            whether the defense has carried its burden of proving
            purposeful discrimination.

Commonwealth v. Edwards, 177 A.3d 963, 971 (Pa. Super. 2018) (citations

and quotation marks omitted). “The trial court should consider the totality of

circumstances    when     determining    whether   the   prosecutor      acted   with

discriminatory   intent     or   engaged      in   purposeful    discrimination.”

Commonwealth v. Towles, 106 A.3d 591, 602 (Pa. 2014), cert. denied, 135

S. Ct. 1494 (2015) (citation omitted). This Court must give great deference

to the trial court’s finding about the absence of discriminatory intent in

peremptory challenges, and we will not overturn it unless it is clearly

erroneous. See id.

      Here, the trial court explained:

            In this case, Appellant’s trial counsel raised objections based
      on the fact that “Number 23, out of the 56 panel member[s], is
      the only African American juror, potential juror” and that “Juror
      Number 23 did not answer any question in such a way the

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      defense, the Commonwealth, nor the Court had to have any
      follow-up question”. (N.T. Trial, 4/19/17, at 51-52). In response,
      the Commonwealth noted that it struck “all single males on the
      jury”, and that “that was the reason he was struck. My first strike
      was single men.” (Id. at 52). The Commonwealth further stated
      that Jurors Number 7 and Number 3 were single men and also
      struck. (See id.) Based on this reasoning, the [c]ourt found, and
      continues to find, that the Commonwealth adequately offered a
      race-neutral explanation for striking Juror Number 23. Th[e]
      [c]ourt does not see any discriminatory intent in the
      Commonwealth’s desire to strike all single males from a potential
      jury for a case where [Appellant] was an unmarried male.
      Accordingly, th[e] [c]ourt maintains that Appellant has
      insufficiently established a claim under Batson.

(Trial Ct. Op., at 6) (record citation formatting provided).

      In the totality of the circumstances, we discern no legal or factual error

where the Commonwealth provided a race-neutral explanation and the trial

court found that Appellant failed to carry his burden of proving his Batson

claim. See Towles, supra at 602; Edwards, supra at 971. Appellant’s first

issue does not merit relief.

      In his second claim, Appellant argues that “[t]he trial court erred in

denying defense counsel’s motion for a mistrial.” (Appellant’s Brief, at 12)

(record citation omitted).     He alleges that his testimony, elicited by the

Commonwealth during cross-examination, that Hand and Stone fired him after

E.M. lodged her complaint, “had the unavoidable effect of depriving [him] of

a fair trial.” (Id. at 13) (citation omitted). Appellant’s claim lacks merit.

      Our standard of review of the denial of a motion for a mistrial is well-

settled.




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            The trial court is in the best position to assess the effect of
      an allegedly prejudicial statement on the jury, and as such, the
      grant or denial of a mistrial will not be overturned absent an abuse
      of discretion. A mistrial may be granted only where the incident
      upon which the motion is based is of such a nature that its
      unavoidable effect is to deprive the defendant of a fair trial by
      preventing the jury from weighing and rendering a true verdict.
      Likewise, a mistrial is not necessary where cautionary instructions
      are adequate to overcome any possible prejudice.

Commonwealth v. Johnson, 107 A.3d 52, 77 (Pa. 2014), cert. denied, 136

S. Ct. 43 (2015) (citation omitted).

      Here, the trial court explains:

             In this case, the Commonwealth on cross-examination of
      Appellant asked, “And in response to that complaint by [E.M.,]
      Hand and Stone fired you?” (N.T. Trial, 4/20/17, at 119).
      Appellant’s trial counsel immediately objected, which objection
      was sustained by the[e] [c]ourt. (See id.). Following this
      objection, a sidebar was held with Appellant’s counsel, the
      Commonwealth, and the [c]ourt, in which Appellant’s counsel
      moved for a mistrial because “there’s before this jury what could
      be conceived as a conclusion of an investigation or a finding of
      fact that he did in fact do this, resulting in his termination”. (Id.
      at 119-20). Appellant’s counsel then asked the [c]ourt for a
      mistrial or, alternatively, a “cautionary instruction that
      employment termination is of no moment as to whether
      something did or did not occur”. (Id. at 120). The [c]ourt denied
      the mistrial, but agreed to instruct the jury “that they strike that
      from their consideration”. [(Id.)]. Appellant’s trial counsel then
      stated that he did not want a cautionary instruction after all. (See
      id.). When the [c]ourt determined that the Commonwealth
      sought to show through its questioning that Appellant wrote a
      statement of appeal following his firing, the [c]ourt agreed to
      allow that statement, and the Commonwealth promised to make
      no mention of the firing other than Appellant’s written statement.
      (See id. at 120-21).

             . . . The only other reference to Appellant’s employment at
      trial occurred during direct examination of Appellant, in which
      Appellant’s counsel asked if Appellant were employed and


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      affirmed that Appellant was working at that time as a personal
      trainer. (See id. at 103). . . .

(Trial Ct. Op., at 78) (record citation formatting provided).

      Based on the foregoing, and our independent review of the certified

record, which confirms the trial court’s recitation of the facts, we conclude that

it did not abuse its discretion in denying Appellant’s motion for a new trial.

See Johnson, supra at 77.          The court sustained Appellant’s objection

immediately after defense counsel made it, and the Commonwealth did not

mention his termination again. Other than his bald presumption that, “[o]nce

the jury heard that Appellant had been fired, no reasonable juror could

possibly conclude that an assault did not occur[,]” Appellant fails to establish

that the jury was unable to fairly weigh the evidence because of this fleeting

mention of his firing. (Appellant’s Brief, at 13 (emphasis omitted); see id. at

12). Appellant’s second issue does not merit relief.

      Appellant’s third issue challenges the sufficiency of the evidence to

sustain his conviction of indecent assault where the Commonwealth failed to

establish that he possessed the required mens rea.          (See id. at 13-15).

Appellant’s issue lacks merit.

             The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test, we
      may not weigh the evidence and substitute our judgment for the
      fact-finder. In addition, we note that the facts and circumstances
      established by the Commonwealth need not preclude every
      possibility of innocence. Any doubts regarding a defendant’s guilt

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      may be resolved by the fact-finder unless the evidence is so weak
      and inconclusive that as a matter of law no probability of fact may
      be drawn from the combined circumstances. The Commonwealth
      may sustain its burden of proving every element of the crime
      beyond a reasonable doubt by means of wholly circumstantial
      evidence. Moreover, in applying the above test, the entire record
      must be evaluated and all evidence actually received must be
      considered. Finally, the finder of fact while passing upon the
      credibility of witnesses and the weight of the evidence produced,
      is free to believe all, part or none of the evidence.

Commonwealth v. Thomas, ___ A.3d ___, 2018 WL 3679940, at *5 (Pa.

Super. filed Aug. 3, 2018) (citation omitted). It is well-settled that, “[i]n a

prosecution for sex offenses, a verdict may rest on the uncorroborated

testimony of the victim. Commonwealth v. Cody, 584 A.2d 992, 993 (Pa.

Super. 1991), appeal denied, 592 A.2d 42 (Pa. 1991) (citing 18 Pa.C.S.A. §

3106) (case citation omitted). Further, “[t]he Commonwealth is not required

to prove mens rea by direct evidence.        Frequently such evidence is not

available.   In such cases, the Commonwealth may rely on circumstantial

evidence.” Commonwealth v. Beasley, 138 A.3d 39, 48 (Pa. Super. 2016),

appeal denied, 161 A.3d 791 (Pa. 2016) (citation omitted).

      Section 3126 of the Crimes Code provides, in pertinent part: “A person

is guilty of indecent assault if the person has indecent contact with the

complainant . . . 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.A. § 3126(a)(1).

      Instantly, both complainants testified that, based on their experience

with other massages, Appellant touched them inappropriately.         (See N.T.

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Trial, 4/19/17, at 109, 112-18; N.T. Trial, at 4/20/17, at 80-81). Specifically,

he rubbed the exterior of their vaginas in a circular motion, penetrating H.R.

with his fingers while pinching her nipples, and grabbing her buttocks. (See

N.T. Trial, 4/19/17, at 112-18; N.T. Trial, 4/20/17, at 80-81). Both women

testified to their discomfort and stated that they did not want Appellant to

touch them this way. (See N.T. Trial, 4/19/17, at 119-21; N.T. Trial, 4/20/17,

at 81-82).

       Based on the foregoing, we conclude that the evidence sufficiently

established that Appellant had indecent contact with the complainants without

their consent for the purpose of arousing sexual desire. See Thomas, supra

at *5; Beasley, supra at 48; Cody, supra at 993. Appellant’s third issue

lacks merit.4

       In Appellant’s fourth issue, he claims that the verdict was against the

weight of the evidence. (See Appellant’s Brief, at 16-17). He maintains that

the verdict shocks the conscience because the evidence, specifically his own

testimony and that of his character witnesses, established that any touching


____________________________________________


4 We note that, although he frames his issue as a challenge to the sufficiency
of the evidence to support a finding of his required mens rea, (see Appellant’s
Brief, at 5, 13), his argument sounds more akin to a weight of the evidence
challenge. He compares his testimony to that of the complainants’ and
concludes that the differences rendered the evidence insufficient. (See id. at
15). He also points to the fact that E.M. did not contact the police and that
no DNA evidence was recovered from H.R.’s underwear as proof that the
evidence was insufficient. (See id.). However, these arguments go to the
weight of the evidence, not its sufficiency, which was within the province of
the jury to decide. See Cramer, infra at *2.

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was accidental, not intentional.    (See id.).   Appellant’s fourth claim lacks

merit.

            When considering challenges to the weight of the evidence,
      we apply the following precepts. The weight of the evidence is
      exclusively for the finder of fact, who is free to believe all, none
      or some of the evidence and to determine the credibility of the
      witnesses. Resolving contradictory testimony and questions of
      credibility are matters for the factfinder. It is well-settled that we
      cannot substitute our judgment for that of the trier of fact.

             Moreover, when a trial court finds that the evidence was not
      against the weight of the evidence, we must give the gravest
      consideration to the trial court’s conclusion because it is the trial
      court, and not the appellate court, that had the opportunity to
      hear and see the evidence presented. Furthermore, a defendant
      will only prevail on a challenge to the weight of the evidence when
      the evidence is so tenuous, vague and uncertain that the verdict
      shocks the conscience of the court.

Commonwealth v. Cramer, ___ A.3d ___ 2018 WL 4232479, at **2-3 (Pa.

Super. filed Sept. 6, 2018) (citations and quotation marks omitted).

      In the case sub judice, the trial court found that:

            . . . The jury was presented with evidence by both the
      Commonwealth and Appellant, considered the credibility of the
      witnesses presented by each side, and ultimately believed the
      evidence presented by the Commonwealth. . . . [T]he evidence
      presented was more than sufficient to support Appellant’s
      convictions, and th[e] [c]ourt discerns no reason why the
      convictions should shock any reasonable person’s sense of justice.
      ...

(Trial Ct. Op., at 10).

      We agree with the trial court. It was within the province of the jury to

determine the weight of the evidence, including resolving conflicts in the

testimony and credibility questions.     See Cramer, supra at *2.          “[T]he


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evidence [was not] so tenuous, vague and uncertain that the verdict shocks

the conscience of the [C]ourt.” Id. at *3. Therefore, Appellant’s fourth issue

lacks merit.

         Finally, in his fifth issue, Appellant challenges the discretionary aspects

of his sentence. (See Appellant’s Brief, at 17-18). This issue is waived.

         Challenges to the discretionary aspects of sentence are not
         appealable as of right. Rather, an appellant challenging the
         sentencing court’s discretion must invoke this Court’s jurisdiction
         by (1) filing a timely notice of appeal; (2) properly preserving the
         issue at sentencing or in a motion to reconsider and modify the
         sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a
         separate section of the brief setting forth “a concise statement of
         the reasons relied upon for allowance of appeal with respect to the
         discretionary aspects of a sentence[;]” and (4) presenting a
         substantial question that the sentence appealed from is not
         appropriate under the Sentencing Code, 42 Pa.C.S.[A.] § 9781(b).

Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (case

citation omitted).

         In this case, Appellant complied with the first two requirements of filing

a timely notice of appeal and a post-sentence motion raising his sentencing

issue.     (See Post Sentence Motion, 8/24/17, at unnumbered page 2).

However, he has failed to include a Rule 2119(f) statement in his brief. “While

this does not automatically waive his claim on appeal, we may not reach the

merits of [the] claims where the Commonwealth has object[ed] to the

omission of the statement.” Commonwealth v. Hudson, 820 A.2d 720, 727

(Pa. Super. 2003), appeal denied, 844 A.2d 551 (Pa. 2004) (citation and

internal quotation marks omitted). Because the Commonwealth objects to the


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omission of Appellant’s Rule 2119(f) statement, (see Commonwealth’s Brief,

at 27-28), we deem his issue waived. See Hudson, supra at 727 (finding

sentencing claim waived for review where Commonwealth objected to

omission of Rule 2119(f) statement).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/28/18




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