J-S18006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
    ADAM BELTZ                             :
                                           :
                     Appellant             :   No. 282 MDA 2018

          Appeal from the Judgment of Sentence September 12, 2017
      In the Court of Common Pleas of Berks County Criminal Division at
                       No(s): CP-06-CR-0005582-2016

BEFORE:     BOWES, J., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY BOWES, J.:                                FILED MAY 31, 2019

       Adam Beltz appeals from the judgment of sentence imposed after a jury

convicted him of rape of an unconscious victim, sexual assault, and two counts

each of aggravated indecent assault, and indecent assault. We affirm.

       The trial court summarized the trial evidence as follows:

              On the evening of July 16, 2016, [Appellant] and at least
       three others, including Colleen Hutchinson, Lisa Levan, and a male
       known as “Juni,” were at [Appellant]’s home in the City of
       Reading. At the time Hutchinson lived with [Appellant] in [his]
       home and had her own room on the third floor. [Appellant] and
       Hutchinson were romantically involved prior to that evening and
       had consensual sex at least once in the weeks leading up to that
       night. Hutchinson was in the kitchen smoking a blunt of synthetic
       marijuana (K2) when she had a seizure and passed out on the
       kitchen floor.     Levan and [Appellant] were present when
       Hutchinson passed out, and Levan helped move Hutchinson to the
       couch in the living room. Shortly after Hutchinson was placed on
       the couch[,] she (Hutchinson) asked Levan to go out with her to
       get a soda. Levan agreed and went upstairs to change her clothes.
       Levan testified that when she came back downstairs[,] Hutchinson
       and [Appellant] were having sex on the couch.



*    Former Justice specially assigned to the Superior Court.
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           Hutchinson testified that she has no recollection of anything
     from the time she began to smoke K2 until the moment Levan
     screamed, “Get off of her, you’re hurting her, you’re raping her.”
     Hutchinson testified she woke up on the living room couch to
     Levan screaming and with [Appellant] between her legs with his
     penis inside her vagina. Levan, who was dating [Appellant] at the
     time of trial, testified at trial that Hutchinson was conscious when
     she came back downstairs, and that she said, “oh, come on, get
     off her so we can go get the soda now.” Hutchinson testified that
     she hit [Appellant] and said something, and then [Appellant] put
     on his pants and moved to another couch. She then proceeded
     upstairs to her room. Levan testified that Hutchinson “stormed
     up the steps” and “she was yelling.”

            The next day, sometime after noon, Hutchinson arrived at
     Reading Hospital where she was examined and a rape kit was
     administered. [Appellant] was charged with rape, aggravated
     indecent assault, and indecent assault of an unconscious person,
     as well as sexual assault and aggravated indecent assault without
     consent. The issues at trial were consent and whether Hutchinson
     was actually unconscious at the time of intercourse. Hutchinson
     testified that the act of intercourse in question was not consensual
     and that she awakened to find [Appellant] on top of her with his
     penis in her vagina. Levan testified that Hutchinson was conscious
     at the moment she came downstairs and witnessed [Appellant]
     and Hutchinson having sex, but stated that Hutchinson had been
     in an out of consciousness throughout the course of the evening.
     [Appellant] stated during a voluntary interview with the Reading
     Police Department shortly after the act in question that
     Hutchinson was a willing and active participant who initiated the
     sexual encounter.       In the interview [Appellant] denied that
     Hutchinson was unconscious until the very end when, he believed,
     she passed out from an orgasm. A video of the interview was
     admitted at trial and played for the jury. The jury rendered a
     verdict against [A]ppellant.

Trial Court Opinion, 1/10/19, at 2-3 (citations omitted; some paragraph

breaks added).

     On September 12, 2017, Appellant was sentenced to sixty-six months

to fifteen years of imprisonment       on the rape conviction, with the



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determination that the remaining convictions merged for sentencing purposes.

Appellant filed a timely post-sentence motion in which he claimed that the

verdict was against the weight of the evidence. The trial court denied the

motion by order entered January 11, 2018, and Appellant filed a timely notice

of appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.1

       Appellant presents the following question for our review:

       Whether the verdict was against the weight of the evidence as the
       testimony established that the victim was never tested for drugs
       when the hospital performed a rape kit test, the Commonwealth
       did not produce a toxicologist regarding the length of time
       synthetic marijuana effects an individual and the victim informed
       the forensic nurse performing the rape kit test that the Appellant
       had requested to have sex with her at least three indicating that
       she was conscious at the time of the sexual encounter?

Appellant’s brief at 4.        The following principles apply to our review of

Appellant’s claim.

       Appellate review of a weight claim is a review of the [trial court’s]
       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.

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013).


____________________________________________


1For reasons not apparent from the certified record, the trial court did not
author its opinion and transmit the record to this Court until January 2019.

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      Appellant argues that he is entitled to a new trial because “the trial

testimony of Hutchinson was fraught with inconsistencies, periods of lost time,

paranoia and an inability to recall details,” rendering the jury’s verdict based

upon her testimony “questionable and contrary to the weight of the evidence.”

Appellant’s brief at 11-12. Appellant points to Hutchinson’s admission that

when she smokes synthetic marijuana, “things don’t seem as they appear.”

Id. at 13.    He contends that the fact that Hutchinson lied about being

unconscious at the time of the incident is somehow established by the fact

that she reported to the sexual assault examiner, the evening of the following

day, that “Appellant was telling everyone that he asked me for a blow job and

I gave him one and then he asked me three times if he could have sex with

me and I said yes, but I didn’t, he lied.” Id. With Hutchinson’s questionable

ability to perceive events accurately, and the lack of corroborating evidence

in the form of toxicology tests or expert testimony about the effects of

synthetic marijuana, Appellant maintains that no jury could properly conclude

beyond a reasonable doubt that Hutchinson was unconscious and unwilling at

the time they had sex on the couch. Id. at 13-14.

      The trial court evaluated Appellant’s claim as follows.

             The contrast between Hutchinson’s uncertainty as to what
      occurred that evening and Levan and [Appellant]’s portrayal of
      their encounter was not so startling that the verdict shocked one’s
      sense of justice, thus, compelling a new trial. To award a new
      trial based on the weight of the evidence would require the court
      to consider the credibility of Hutchinson, Levan, and [Appellant]’s
      testimony. In addition, the evidence (or lack thereof) referenced
      in [Appellant]’s statement would serve no other purpose except

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      challenge the credibility of Hutchinson’s testimony concerning the
      events. To find Hutchinson not credible because “the victim was
      never tested for drugs when the hospital performed a rape kit test,
      the Commonwealth did not produce a toxicologist regarding the
      length of time synthetic marijuana affects an individual and the
      victim informed the forensic nurse performing the rape kit test
      that [Appellant] had requested to have sex with her at least three
      times indicating that she was conscious at the time of the sexual
      encounter,” would be a clear invasion of the exclusive domain of
      the jury. Thus, it would have been an abuse of this court’s
      discretion to grant his post-sentence motion for a new trial based
      on the weight of the evidence and this court will not do so.

Trial Court Opinion, 1/10/19, at 4 (unnecessary capitalization omitted.)

      Appellant essentially seeks to have this Court adopt his credibility

determinations and resolve questions of fact in place of the jury. This we

cannot do.    See, e.g., 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. It is well-settled that we cannot

substitute our judgment for that of the trier of fact.”) (citations omitted).

      Our role is to determine whether the trial court’s determination that the

verdict did not shock its conscience was the product of an abuse of discretion.

Our review of the transcript reveals that Hutchinson testified that she used

drugs daily during the time that she lived with Appellant, that she had

consensual intercourse with him more than once while under the influence of

the drugs, and that she remembered those instances. N.T. Trial, 5/15-16/17,

at 69-70. She used crystal methamphetamine, crack cocaine, and heroin. Id.

at 89. She had smoked K2 on a prior occasion, but it was a joint, not a blunt.

Id. at 94-95. Shortly after moving in with Appellant, Hutchinson informed

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him that they had to just be friends, because she had begun seeing someone

else seriously. Id. at 67. On the night in question, she had a seizure after

smoking a blunt of K2, and woke up to find Appellant penetrating her vagina

with his penis. Id. at 72, 74. Hutchinson had a similar reaction the next time

she smoked the synthetic marijuana, causing her to go to the hospital and

having trouble staying conscious. Id. at 80-81.

      From this, we conclude that the trial court’s rejection of Appellant’s

argument concerning Hutchinson’s questionable reliability and the lack of

corroborating evidence was not an error of law, manifestly unreasonable, or

“a result of partiality, prejudice, bias or ill-will.” Clay, supra at 1055 (internal

quotation marks omitted); see also Commonwealth v. Johnson, 180 A.3d

474, 479 (Pa.Super. 2018) (“[T]he 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.”) (cleaned up).          Accordingly, Appellant is

entitled to no relief from this Court.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/31/2019

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