J-S17030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 WILDER GONZALEZ                           :
                                           :
                    Appellant              :   No. 1898 EDA 2018

        Appeal from the Judgment of Sentence Entered June 20, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0007574-2017


BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

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

      Appellant, Wilder Gonzalez, appeals from the judgment of sentence

entered on June 20, 2018 in the Criminal Division of the Court of Common

Pleas of Philadelphia County. We affirm.

      The trial court aptly summarized the facts and procedural history in this

case as follows.

      This case involves an incident that occurred in the early morning
      hours of August 20, 2017, between Appellant and the complaining
      witness, [R.J. (Victim)]. [Victim] testified at trial that [she] and
      Appellant [met two years prior] and dated for about seven months
      until their relationship ended in February 2017. During [their]
      relationship, [Victim] and Appellant lived together at her
      apartment [on] Magee Street in Philadelphia, PA. After the
      relationship ended, [Victim obtained] a Protection from Abuse
      (PFA) order from the Philadelphia Family Court against Appellant
      to get him out of her apartment. The PFA order became final on
      August 1, 2017, and was [in force] for three years.

      [Victim] testified that on the night of August 19, 2017, she was
      out for a party at a bar and she saw the Appellant[.] When
      [Victim] left the bar with a friend later that night around 2:30
J-S17030-19


     a.m., she testified that Appellant followed her to her house on
     Magee Street. Appellant let himself into her house with the copy
     of the keys that he still had and went up to the bedroom. [Victim]
     did not give him permission to be inside of her house. [Victim]
     testified that she told Appellant to leave and she said he stated
     “he could not leave because I [Victim] was in his room and that it
     will be his room whether I [Victim] like it or not.” [The argument
     between Victim and Appellant caused] the neighbors [to call] the
     police to come to the house. When the police officers arrived,
     [Victim] told them about the PFA order she had against Appellant
     but they could not find it in their [computer] system. The officers
     still had Appellant leave the house. After the police left, about ten
     minutes later, Appellant came back to [Victim’s] house. [Victim]
     testified that Appellant went into her room again and she again
     told him to leave but Appellant stated “I’m his woman and he’s
     going to be with me. And he will leave whenever he wanted to
     leave.” [Victim] testified that she was going to try to call the
     police but Appellant grabbed her phone [and] locked the bedroom
     door. Appellant then got on top of [Victim] and said “you’re my
     woman and you’re going to be my woman.” Appellant then
     slapped [Victim] in the face with a closed fist and threw her on
     the bed. He then grabbed both her arms and was holding her
     down when he started to kiss her body [and rape] her. [Victim]
     testified that she told Appellant not to do this and that she was
     going to report him. [In response,] Appellant said “I don’t care …
     that I [Victim] was always going to be his and if I [Victim] wasn’t,
     he was going to kill me.” [Victim] testified that this went on for
     about 15 minutes. [Victim] did try to fight by kicking Appellant
     and she eventually was able to kick Appellant to the floor.
     Appellant then grabbed [Victim] by the hair and pulled her around
     but she was able to get away, open the door and get out of the
     bedroom. [Victim] testified that when she got out of the room
     she ran down to the basement where her renter, [I.D.], lived and
     they locked the basement door. Appellant was banging on the
     door and yelling at them that he was going to kill them. After
     about 15-20 minutes[,] Appellant finally left the house.

     [Victim] testified that she stayed in the basement until the
     following morning because she was scared. She called her friend
     [A.R.] and told her that she needed to talk to her in person. [A.R.]
     came to the house the next day. [A.R.] testified that when she
     went over to [Victim’s] house, [Victim] began crying as she
     started to tell her about what happened with Appellant. [A.R.]
     also testified that [Victim] had bruises on her face and arm and


                                     -2-
J-S17030-19


     that [Victim] told her that Appellant assaulted her and had sex
     with her against her will. The two of them then went over to the
     police station that night to report what happened. [Victim] gave
     her statement to the police and was checked out by a doctor, and
     did not return home until early morning on August 22, 2017[.]

     Appellant had a different version of what happened[. At trial,
     Appellant testified] that [Victim] had allowed him to move back
     into her house even after the PFA order and he had been living
     there for about a week when this incident occurred. On the night
     of August 19, 2017, Appellant testified that after he got home
     from work, he and [Victim] had sex and then the two of them went
     out to a bar together[,] getting home around 3:00-3:30 [a.m.]
     Appellant testified that they were both drunk and that [Victim]
     started with a jealousy fit arguing with him and then pulling him
     from the bed trying to hit him[. At that time, Appellant] grabbed
     [Victim] by the arms to try to calm her down. Appellant testified
     that [Victim] then threw him onto the bed almost breaking his arm
     and[, afterwards,] she went out to call the police. When the police
     came to the house, Appellant testified that he met them outside
     and told them that his girlfriend was inside the house acting crazy.
     According to Appellant, [Victim] then came out with the PFA order
     to show the police and the police could not find it in their
     [computer] system. Appellant [testified] that the police [told] him
     to leave the house until everything calmed down. Appellant left
     but testified he came back about ten minutes later and [Victim]
     was in the basement, so he just went upstairs to sleep since he
     had to work the next morning.

     On August 22, 2017, [Appellant] was arrested and charged with
     burglary, rape, sexual assault, unlawful restraint, contempt for
     violation of [PFA o]rder, simple assault, and recklessly
     endangering another person. On April 17, 2018, Appellant waived
     his right to a jury [trial] and proceeded to a bench trial before the
     [c]ourt. On that date, the [trial c]ourt found Appellant guilty of
     burglary, rape, unlawful restraint, and contempt for violation of a
     PFA order. On June 20, 2018, the [trial c]ourt sentenced Appellant
     to an aggregate sentence on all the charges of three to six years[’]
     incarceration followed by three years[’] probation.

     Appellant filed this timely appeal of the [trial c]ourt’s decision on
     June 22, 2018. On June 26, 2018, the [trial c]ourt ordered
     Appellant to file a Pa.R.A.P. 1925(b) [concise] statement of
     matters complained of on appeal within 21 days. Appellant
     requested[, and the Court granted,] an extension of time due to

                                     -3-
J-S17030-19


      the lack of transcription of the notes of testimony. Appellant filed
      [his concise statement] on August 22, 2018, after all the notes of
      testimony became available.

Trial Court Opinion, 9/19/18, at 1-5 (miscellaneous capitalization omitted).

      Appellant identifies a single issue for our review.

      Was [Appellant] erroneously convicted of unlawful restraint,
      [where] there was insufficient evidence to establish that [Victim]
      was restrained under [] circumstances exposing her to [the] risk
      of serious bodily injury?

Appellant’s Brief at 3.

      In his sole issue, Appellant argues that the evidence was insufficient to

demonstrate that he restrained Victim under conditions that exposed her to a

risk of serious bodily injury. This claim merits no relief.

      Appellant’s claim challenges the sufficiency of the evidence. Hence, our

standard of review is as follows:

      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
      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.

                                      -4-
J-S17030-19



Commonwealth v. Montanez-Castro, 198 A.3d 377, 380 (Pa. Super. 2018)

(internal citation and original brackets omitted).

      A person is guilty of unlawful restraint under 18 Pa.C.S.A. § 2902(a)(1)

where he knowingly “restrains another unlawfully in circumstances exposing

him to [the] risk of serious bodily injury.” 18 Pa.C.S.A. § 2902(a)(1).

      In rejecting Appellant’s sufficiency challenge, the trial court reasoned as

follows.

      Here, based on [Victim’s] version of events from the early morning
      of August 20, 2017, there was evidence that she was threatened
      by Appellant, struck by him, and that she forcibly resisted his
      actions. [Victim’s] testimony at trial was that Appellant went into
      [Victim’s] room despite the PFA order and he would not leave after
      she told him to leave. [Victim] testified that she was going to try
      to call the police but Appellant grabbed her phone [and] locked
      the bedroom door. Appellant then got on top of [Victim], slapped
      her in the face with a closed fist, and threw her on the bed. He
      then grabbed both her arms and was holding her down when he
      started to kiss her body [and rape] her. [Victim attempted] to
      resist by kicking Appellant and she eventually was able to get
      away, open the door and get out of the bedroom. Based upon this
      testimony, which is similar to the evidence [presented in prior
      appellate cases], the [trial c]ourt reasonably inferred that
      [Appellant unlawfully restrained [Victim] under conditions that
      exposed her to a risk of serious bodily injury in violation of 18
      Pa.C.S.A. § 2902(a)(1).]

      Furthermore, questions of witness credibility and the weight to be
      afforded the evidence are within the sole province of the finder of
      fact, who is free to believe all, part, or none of the evidence.
      Commonwealth v. Woods, 638 A.2d 1013, 1015 (Pa. Super.
      1994); Commonwealth v. Mayfield, 585 A.2d 1069 (Pa. Super.
      1991). Here, the court found that the testimony of [Victim] was
      entirely reasonable and credible and did not believe Appellant’s
      version of what occurred that night.

Trial Court Opinion, 9/19/18, at 10.


                                       -5-
J-S17030-19



      We concur in the trial court’s assessment that the evidence adduced by

the Commonwealth was sufficient to support Appellant’s conviction for

unlawful restraint. Under our standard of review, it is within the province of

the court, serving as the finder of fact, to credit all, some, or none of the

evidence.   The trial court here credited Victim’s and rejected Appellant’s

version of events. Viewing the testimony of Victim in the light most favorable

to the Commonwealth, there was sufficient evidence to support Appellant’s

unlawful restraint conviction. No relief is due.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/31/19




                                     -6-
