J-S77008-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JOSE SILVA

                            Appellant                No. 2748 EDA 2013


       Appeal from the Judgment of Sentence entered November 1, 2012
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0011099-2008


BEFORE: STABILE, JENKINS, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE                            FILED FEBRUARY 09, 2015

        Appellant, Jose Silva, appeals from the November 1, 2012 judgment of

sentence imposing 2½ to 5 years of incarceration for sexual assault (18

Pa.C.S.A. § 3124.1) followed by a consecutive 5 years of probation for

indecent assault of an unconscious victim (18 Pa.C.S.A. § 3126(a)(4)). We

affirm.

        The assault of the victim took place in the early morning hours of June

15, 2008.     The victim reported the assault the same day.     Appellant was

arrested and proceeded to a bench trial on June 22, 2012. At the conclusion

of the trial, the judge found Appellant guilty of the aforementioned offenses.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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         The trial court’s Pa.R.A.P. 1925(a) opinion sets forth the following

facts:

               The [victim], age 40 at the time of trial, testified that on
         June 14, 2008, she drove herself and two acquaintances, Melissa
         Shepard and [Appellant] from her home in Philadelphia to a
         mutual friend’s military deployment party at a nightclub in
         Trenton, New Jersey. While there, they had three rounds of
         cosmopolitan cocktails after which she became very ill and began
         vomiting. Due to her condition, she had [Appellant] drive them
         back to her home during which she continued vomiting. Her
         companions assisted her to her bedroom and as she thought
         they were leaving she fell asleep in her bed, when, at some point
         after which, she awoke to find [Appellant] sitting on the edge of
         her bed massaging her feet. She told him it was time for him to
         go and escorted him downstairs to the front door; he asked for
         and was given a hug but when he then started to try to kiss her
         she pushed him away and then passed out on the stairs near the
         front door. The next thing she remembered was waking up on
         the couch in her basement with [Appellant] on top of her
         engaging in intercourse, whereupon she pushed him away, put
         her pants back on and had him leave, making it clear that she
         never consented to having any sexual contact with him. She
         went back upstairs, found Shepard asleep in her guest room,
         returned to her bedroom and waited for Shepard to wake up,
         after which Shepard drove her to the hospital where she
         reported the incident to the police. Over the course of the rest
         of the day and into the night she received numerous text
         messages from [Appellant] profusely apologizing for the
         incident; she emailed them to the investigating police officer and
         the Commonwealth confirmed their receipt from [Appellant’s]
         cell phone by submitting the telephone company records. The
         Commonwealth then called the police officer who confirmed the
         victim’s report of the rape and her sending him text messages,
         followed by Shepard who confirmed attending the gathering and
         the victim becoming ill and vomiting as they left the nightclub
         and took her home, and Maureen Hahn, whom the complainant
         had called and told her about the rape, who knew both her and
         [Appellant] for a number of years and testified that the
         complainant never expressed any attraction for [Appellant] and
         that she never saw them socialize in any way.

Trial Court Opinion, 7/17/14, at 2-3.

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      Appellant’s sole argument on appeal is that the Commonwealth failed

to produce sufficient evidence in support of his convictions. Appellant’s Brief

at 4. Specifically, he argues the victim consented to have intercourse with

him. We review Appellant’s argument as follows:

             The standard we apply in reviewing the sufficiency of
      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 factfinder 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
      that of 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
      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
      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.

Commonwealth v. Feese, 79 A.3d 1101, 1119 (Pa. Super. 2013), appeal

denied, 94 A.3d 1007 (Pa. 2014).

      Section 3124.1 of the Pennsylvania Crimes Code provides: “Except as

provided in section 3121 (relating to rape) or 3123 (relating to involuntary

deviate sexual intercourse), 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.” 18

Pa.C.S.A. § 3121.4 (emphasis added).       A person commits indecent assault

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“if the person has indecent contact with the complainant […] and: […] (4)

the complainant is unconscious[.]”    18 Pa.C.S.A. § 3126(a)(4).      Indecent

contact includes “Any touching of the sexual or other intimate parts of the

person for the purpose of arousing or gratifying sexual desire, in any

person.” 18 Pa.C.S.A. § 3101.

      Appellant argues the victim consented to sexual intercourse. Thus, he

believes the evidence is insufficient because the trial court found him guilty

based solely on the victim’s uncorroborated assertion to the contrary. As set

forth above, the victim testified she passed out and woke up to find herself

naked from the waist down with Appellant on top of her having sexual

intercourse with her. N.T. Trial, 6/22/12, at 25-26. The victim testified she

never consented to having intercourse with Appellant. Id. at 27.

      Appellant, testifying in his own defense, stated the victim began

kissing him as he was preparing to leave her home.       Id. at 92.   The two

then began “making out” and the victim said, “let’s have sex right here.”

Id. The two then moved to a couch in the basement and had consensual

intercourse. Id. at 92-93.

      The trial court, sitting as finder of fact, found the victim’s account

credible and Appellant’s account not credible.       We must afford great

deference to the trial court’s findings of fact.        Commonwealth v.

Baumhammers, 92 A.3d 708, 717 (Pa. 2014). “[T]here is no justification

for an appellate court, relying solely upon a cold record, to review the fact-


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finder’s first-hand credibility determinations.”    Commonwealth v. White,

734 A.2d 374, 381 (Pa. 1999). The trial court was free to believe “all, part,

or none of the evidence, Feese, 79 A.3d at 1119, and in this case the court

was free to believe the victim’s testimony and disbelieve that of Appellant.

       Despite the foregoing, Appellant argues the evidence is insufficient

because the victim’s testimony is uncorroborated.1 According to Appellant,

this renders the evidence too weak and inconclusive to support a conviction.

The victim’s testimony, deemed credible by the trial court, establishes that

Appellant had sex with her without her consent and while she was

unconscious.       This testimony sufficiently establishes the elements of

§§ 3124.1 and 3126(a)(4).             “[U]nder prevailing Pennsylvania law, the

uncorroborated testimony of a sexual assault victim, if believed by the trier

of fact, is sufficient to convict a defendant.” Commonwealth v. Trippett,

932 A.2d 188, 201 (Pa. Super. 2007); see also 18 Pa.C.S.A. § 3106 (“The

testimony of a complainant need not be corroborated in prosecutions under

this chapter.”).     If it were otherwise, it would be impossible to obtain a

conviction in a “he said, she said” case such as this one.

       In addition, Appellant’s argument conveniently ignores the text

messages he sent to the victim apologizing for the incident.             Those

____________________________________________


1
   In the first sentence of the argument section of his brief, Appellant notes
his regret at failing to raise and preserve a challenge to the weight of the
evidence. Appellant’s Brief at 20.



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messages corroborate the victim’s assertion that Appellant acted without her

consent. At trial, Appellant construed those text messages as indicative of

his remorse that he cheated on his girlfriend, but the trial court disbelieved

Appellant’s explanation.

      Appellant further argues the Commonwealth is potentially “hiding

something” by failing to introduce hospital records or a rape kit into

evidence, even though the victim went to the hospital and a rape kit was

performed. Appellant’s Brief at 24. This argument avails Appellant nothing,

as he fails to explain how the records would have undermined the victim’s

testimony that she did not consent to sexual intercourse.            Appellant

admitted that he had sexual intercourse with the victim.      Rape kit results

were not necessary to confirm that fact.     The victim did not allege that a

violent physical struggle occurred.        Thus, medical records were not

necessary to confirm or refute that scenario.       See Commonwealth v.

Poindexter, 646 A.2d 1211, 1214 (Pa. Super. 1994) (“the uncorroborated

testimony of a rape victim, if believed by the jury, is sufficient to support a

rape conviction and no medical testimony is needed to corroborate a victim’s

testimony if the testimony was rendered credible by the jury.”).        In any

event, Appellant does not argue the Commonwealth failed to disclose

exculpatory evidence in its possession, in violation of Pa.R.Crim.P. 573(B)

and Brady v. Maryland, 373 U.S. 83 (1963).




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     In summary, the evidence of record is sufficient to support Appellant’s

convictions. Appellant’s arguments to the contrary lack merit.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/2015




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