J-A06031-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
            Appellee                       :
                                           :
                   v.                      :
                                           :
LOGAN HUNTER BERNAT,                       :
                                           :
            Appellant                      :   No. 33 WDA 2017

        Appeal from the Judgment of Sentence November 18, 2016
             in the Court of Common Pleas of Clarion County
          Criminal Division, at No(s): CP-16-CR-0000442-2015

BEFORE: BENDER, P.J.E, SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY: STRASSBURGER, J.          FILED APRIL 13, 2018

     Logan Hunter Bernat (Appellant) appeals from the judgment of sentence

imposed after a jury found him guilty of sexual assault. We affirm.

     On September 27, 2015, Victim, a freshman at Clarion University, met

Appellant between parties. Appellant and others went to Victim’s dorm room

and ordered pizza. The others began leaving approximately one hour after

the pizza was ordered, eventually leaving Appellant alone in the room with

Victim. Appellant then had sexual intercourse with Victim against her will.

During the assault, Victim sent text messages seeking help. Two of Victim’s

friends then came to her room, and Appellant pulled up his pants and fled.

The police were called, and photographs of Victim’s room were taken,

including photographs showing blood on a blanket on Victim’s bed. Victim

went to the hospital, where she was examined and photographs of her

* Retired Senior Judge assigned to the Superior Court.
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condition were taken. Of import to this appeal, one of those photographs is a

close-up of Victim’s genitalia revealing substantial abrasions.

      Appellant was charged with several crimes related to his assault of

Victim.   Before trial, he unsuccessfully sought, via a motion in limine, to

exclude the photographs described above. Following a jury trial, Appellant

was convicted of sexual assault, but acquitted of rape and simple assault.

Appellant was sentenced to 40 to 80 months of imprisonment.                 After

Appellant’s timely-filed post-sentence motion was denied, Appellant timely

filed a notice of appeal to this Court. Both Appellant and the trial court have

complied with Pa.R.A.P. 1925.

      Appellant presents three questions for this Court’s review, which amount

to two issues: whether the evidence was sufficient to sustain Appellant’s

conviction, and whether the trial court erred in denying Appellant’s motion in

limine seeking to exclude the photographs of the bloody blanket and Victim’s

genitalia.

      We address Appellant’s sufficiency arguments mindful of the following:

      [i]n reviewing sufficiency of evidence claims, we must determine
      whether the evidence admitted at trial, as well as all reasonable
      inferences drawn therefrom, when viewed in the light most
      favorable to the verdict winner, are sufficient to support all the
      elements of the offense. Additionally, to sustain a conviction, the
      facts and circumstances which the Commonwealth must prove,
      must be such that every essential element of the crime is
      established beyond a reasonable doubt. Admittedly, guilt must be
      based on facts and conditions proved, and not on suspicion or
      surmise. Entirely circumstantial evidence is sufficient so long as

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      the combination of the evidence links the accused to the crime
      beyond a reasonable doubt. 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 fact
      finder is free to believe all, part, or none of the evidence presented
      at trial.

Commonwealth v. Cline, 177 A.3d 922, 925 (Pa. Super. 2017) (quoting

Commonwealth v. Moreno, 14 A.3d 133, 136 (Pa. Super. 2011)).

      The relevant criminal statute provides that “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. § 3124.1.      Sexual intercourse, “[i]n addition to its

ordinary meaning, includes intercourse per os or per anus, with some

penetration however slight; emission is not required.” 18 Pa.C.S. § 3101.

Because the statute does not specify otherwise, the default mens rea of

“intentionally, knowingly or recklessly” applies. 18 Pa.C.S. § 302(c).

      In maintaining that the Commonwealth did not establish each element

of sexual assault, Appellant does not argue that the evidence was insufficient

to establish that his actions against Victim were done without her consent, or

that he acted at least recklessly. Rather, Appellant focuses on the contention

that the evidence was insufficient to prove that he penetrated Victim’s vagina.

Appellant acknowledges that the testimony of the complainant is sufficient to

convict a defendant of sexual assault, but contends that the evidence is



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insufficient to prove sexual intercourse beyond a reasonable doubt “where the

elicited testimony (and other evidence) leaves open the question of whether

the defendant’s penis penetrated the vagina[.]” Appellant’s Brief at 21.

      The evidence in the instant case did not leave the question of

penetration open. Victim was asked “Now, … when you say that he had sex

with you, does that mean that his penis penetrated your vagina?”           N.T.,

8/1/2016, at 178. Her answer: “Yes.” Id. This testimony was corroborated

by Marina Meholick, one of the people who responded to Victim’s request for

help, who testified that Appellant reported that he had been having sex with

Victim. Id. at 107. Accordingly, Appellant’s claim that the Commonwealth

did not prove penetration is meritless.

      With his remaining sufficiency challenge, Appellant contends that the

trial court erred in denying his motion for judgment of acquittal because the

evidence is so full of contradictions that “it was not possible for the jury to

reach a rational conclusion regarding the incident.” Appellant’s Brief at 24.

Appellant cites Commonwealth v. Bennett, 303 A.2d 220 (Pa. Super.

1973), in support of his argument. In Bennett, the Commonwealth’s case

was based on the testimony of one witness, Jones. This Court found that

Jones’s testimony was insufficient to support Bennett’s conviction of receiving

of stolen property.

           Jones (who had been contradictory with respect to his own
      perpetration of the larceny) sought to implicate the defendant by

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      giving several wholly different, conflicting and inconsistent
      versions of when and how he had told her that the car had been
      in fact stolen by him. On a previous occasion Jones had denied
      he had ever conveyed to defendant knowledge of the car’s theft.
      With each new version Jones would recant the previous one and
      protest that the newest version was in fact the true one. This
      situation presented the jury not with a mere conflict or
      contradiction in testimony which was reasonably reconcilable by
      them, but a situation falling within the rule: ... a case should not
      go to the jury where the party having the burden offers testimony
      of a witness, or of various witnesses, which is so contradictory on
      the essential issues that any finding by the jury would be a mere
      guess…. When the testimony is so contradictory on the basic
      issues as to make any verdict based thereon pure conjecture the
      jury should not be permitted to consider it.

Id. at 220-21 (internal quotation and citation omitted).

      The evidence offered in Bennett is not at all analogous to the situation

in the instant case. The “contradictions” cited by Appellant, see Appellant’s

Brief at 23-24 (noting that others who were there for pizza thought Appellant

was remaining in the room afterwards with Victim’s consent; that Victim

texted for help instead of shouting; and that Victim smiled for a photograph

later at the hospital), in no way presented irreconcilable guesswork for the

jury. The jury was free to conclude, for example, that a person’s allowing

someone to remain in her room does not constitute consent to hold her down

and have intercourse with her while she says “stop,” and “I don’t want to do

this.” N.T., 8/1/2016, at 176. See also id. at 103 (Meholick testifying that

she heard “concerning noises” and “ow and stop” coming from Victim’s room

while Victim was alone with Appellant).



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      In sum, the evidence against Appellant was not weak or inconclusive.

The inconsistencies among witnesses about things such as at what exact time

the pizza arrived does not negate the Commonwealth’s clear evidence that

Appellant   had   sexual   intercourse    with   Victim   without   her   consent.

Accordingly, the trial court did not err in denying Appellant’s motion for

judgment of acquittal.

      We turn to Appellant’s remaining claims: that the trial court should have

excluded as inflammatory and prejudicial the photographs of Victim’s bloody

blanket and genitalia. Our standard of review is for an abuse of discretion.

             A trial court has broad discretion to determine whether
      evidence is admissible and a trial court’s ruling on an evidentiary
      issue will be reversed only if the court abused its discretion.
      Accordingly, a ruling admitting evidence will not be disturbed on
      appeal unless that ruling reflects manifest unreasonableness, or
      partiality, prejudice, bias, or ill-will, or such lack of support to be
      clearly erroneous.

Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa. Super. 2013) (internal

quotation and citations omitted).

      When considering the admissibility of photographs of a crime scene or

victim, which by their very nature can be unpleasant, disturbing, and even

brutal, the trial court must engage in a two-step analysis:

      First a [trial] court must determine whether the photograph is
      inflammatory. If not, it may be admitted if it has relevance and
      can assist the jury’s understanding of the facts. If the photograph
      is inflammatory, the trial court must decide whether or not the
      photographs are of such essential evidentiary value that their



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     need clearly outweighs the likelihood of inflaming the minds and
     passions of the jurors.

Commonwealth v. Tharp, 830 A.2d 519, 531 (Pa. 2003) (citation omitted).

“The fact that blood is visible does not necessarily require a finding that a

photograph is inflammatory.”    Commonwealth v. Lewis, 567 A.2d 1376,

1382 (Pa. 1989).   Additionally, “[e]ven where the body’s condition can be

described through testimony from a medical examiner, such testimony does

not obviate the admissibility of photographs.” Commonwealth v. Begley,

780 A.2d 605, 622–23 (Pa. 2001) (quoting Commonwealth v. Jacobs, 639

A.2d 786, 789 (Pa. 1994)).

     Appellant notes that “there is a dearth of case law addressing the

inflammatory nature of photo[graph]s of genitals” and posits that this

suggests that such images “are not frequently presented as evidence because

of their inherently prurient nature, which almost certainly inflames the

passions of the jury.”   Appellant’s Brief at 17.   He also contends that the

blanket photo was inflammatory because it gruesomely showed a substantial

amount of blood. Id. at 18.

     The trial court viewed the photographs prior to trial and determined that

they were not inflammatory.

           Here, the photographs were not of such a gruesome nature
     or cast in such an unfair light that they would tend to cloud the
     jury’s assessment of the guilt or innocence of [Appellant]. The
     photographs were not gruesome or inflammatory. They were fair
     and accurate depictions of [Victim’s] bed and her physical

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      condition on [the] night of the incident. As such, they were
      relevant evidence and they tended to corroborate the testimony
      that [Appellant] had penetrated [Victim’s] vagina with his penis.

Trial Court Opinion, 4/25/2017, at 4-5 (unnumbered).

      We discern no abuse of discretion in the trial court’s ruling.      The

photograph of the blanket reveals blood on the bed in the area where Victim’s

genitals would have been, given her account of Appellant’s being on top of

her. While it is certainly not a pleasant sight, it is far from what has been

deemed gruesome in the cases relied upon by Appellant. Appellant’s Brief at

17-19 (citing Commonwealth v. Scaramuzzino, 317 A.2d 225, 226-27 (Pa.

1974) (holding it was error to show, for over ten minutes, color autopsy

photographs, including those of the victim’s heart removed from the body,

where the minimal value in helping the jury understand the pathologist’s

testimony concerning cause of death was “clearly outweighed by the likelihood

of inflaming the minds and passions of the jurors”)).

      Likewise, while viewing the photograph of Victim’s abraded vaginal area

likely caused discomfort to the jury, the photograph presents only relevant

information, not a prurient depiction designed to inflame the passions of the

jurors. Appellant complains of the fact that it is a close-up image; however,

the detail to be seen—the blood and abrasions—would not be discernable from

a more remote view. Further, to minimize any risk of inflammation, the trial

court took the precaution of prohibiting the photograph from being published



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on the television monitor or passed among the jurors. We cannot conclude

that the trial court’s decision was an abuse of discretion.        See, e.g.,

Commonwealth v. Dotter, 589 A.2d 726, 729 (Pa. Super. 1991) (“The

photographs in the instant case were neither gruesome nor inflammatory. The

testimony was that they were fair and accurate depictions of [the victim’s]

physical condition on the morning after the incident for which [Dotter] was on

trial. As such, they were relevant evidence and tended to corroborate [the

victim’s] testimony that [Dotter] had exercised forcible compulsion to achieve

sexual satisfaction.”).

      Accordingly, Appellant has failed to convince us that the trial court

committed an error of law or abuse of discretion that warrants relief from this

Court.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 4/13/2018

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