Com. v. Salfiti, M. ( 2019 )

J-S10002-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MAZEN F. SALFITI :
:
Appellant : No. 1698 EDA 2018
Appeal from the Judgment of Sentence May 23, 2018
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0003995-2017
BEFORE: GANTMAN, P.J.E., STABILE, J., and COLINS*, J.
MEMORANDUM BY COLINS, J.: FILED MARCH 22, 2019
Appellant, Mazen F. Salfiti, appeals from the judgment of sentence of
three to twelve months of confinement followed by three years of probation,
which was imposed after his conviction at a bench trial for indecent assault
without consent, harassment – subjects the other person to physical contact,
and indecent assault by forcible compulsion.1 We affirm.
The facts underlying this appeal are as follows:
The [V]ictim and Appellant knew each other from the [V]ictim’s
prior employment at Wawa[, a convenience store]. N.T.,
2/15/[20]18, at 35-44. On April 12, 2017, the [V]ictim, a senior
at North Penn High School, exited the Wawa located in
Towamencin, Montgomery County, P[ennsylvania,] after
purchasing coffee on her way to school. [Id.] at 44. As the
[V]ictim exited Wawa to walk to her car, Appellant, who was
sitting outside Wawa in his minivan, called out to the [V]ictim by
her nickname, and asked her to “come over...” [Id.] at 44-46.
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1 18 Pa.C.S. §§ 3126(a)(1), 2709(a)(1), and 3126(a)(2), respectively.
* Retired Senior Judge assigned to the Superior Court.
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To be polite, the [V]ictim approached Appellant and, stood outside
his minivan. [Id.]
According to the [V]ictim, there was small talk consisting of
Appellant complimenting her and trying to get her to go out with
him. [Id.] at 45. During their conversation, Appellant placed his
hand on the back of the [V]ictim’s head, pulled her in through his
window, tried giving her a kiss, and told her to open her mouth.
[Id.] at 47-49[,] 62-63[; Ex. C-1 (DVD of surveillance footage
from Wawa)]. Specifically, the [V]ictim testified that Appellant
“was just trying to kiss me” and “kept just repeatedly saying open
my mouth, give me a kiss”; and that Appellant’s “lips were on
[her] lips,” “his tongue was on [her] lips, but [she] kept [her]
mouth closed,” and that she felt “really uncomfortable.” N.T.,
2/15/[20]18, at 51. Moreover, she testified that she “was pulling
back, but he didn’t let me pull back.” [Id.] at 53.
Trial Court Opinion, filed July 23, 2018, at 4-5 (some formatting). During
cross-examination, the Victim’s testimony continued:
Q. It says in here, [in the Victim’s] statement to the police,
which I’ll show you on page 2: “. . . He then refused to let go
after I told him to stop and yelled.”
What did you yell?
A. I did not yell. I did raise my voice to tell him to stop. . . .
Q. So the most contact that occurred between the two of you
was his arm around you and his tongue touching your lips?
A. Yes.
Q. Which you did not want and pulled back?
A. Yes.
N.T., 2/15/2018, at 77, 79.
On redirect, the Commonwealth asked the [V]ictim to read her
handwritten statement given to police following the incident into
the record. N.T., 2/15/[20]18, at 89. The [V]ictim read the
following questions and answers into the record.
Q: Did you feel violated after he kissed you without your
consent?
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A: Yes.
Q: Did he give you another hug before you left?
A: Yes.
Q: Did you ever tell him to stop?
A: I did when he was kissing me in the window of his car.
Q: What did he say to you?
A: He told me that no one has to know and no one will find
out.
[Id.] Th[e trial c]ourt found the [V]ictim offered credible
testimony establishing indecent contact, lack of consent, and
forcible compulsion.
Trial Court Opinion, filed July 23, 2018, at 5-6 (some formatting).
The trial court convicted Appellant of the aforementioned charges on
February 5, 2018, and sentenced him on May 23, 2018. On June 8, 2018,
Appellant filed this timely direct appeal.2
Appellant presents the following issues for our review:
1. Was the evidence insufficient to support [Appellant]’s
conviction for indecent assault - without consent pursuant to 18
Pa.C.S. § 3126(a)(1) where the Commonwealth failed to establish
the [Victim] did not consent?
2. Was the evidence insufficient to support [Appellant]’s
conviction for indecent assault - forcible compulsion pursuant to
18 Pa.C.S. § 3126(a)(2) where the Commonwealth failed to
establish forcible compulsion?
3. Was the evidence insufficient to support [Appellant]’s
conviction for harassment - physical contact pursuant to 18
Pa.C.S. § 2709(a)(1) where the Commonwealth failed to establish
[Appellant] possessed the requisite specific intent?
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2Appellant filed his statement of errors complained of on appeal on June 29,
2018. The trial court entered its opinion on July 23, 2018.
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Appellant’s Brief at 4 (suggested answers omitted).
This Court’s standard for reviewing sufficiency of the evidence
claims is as follows:
We must determine whether the evidence admitted at trial,
and all reasonable inferences drawn therefrom, when
viewed in a light most favorable to the Commonwealth as
verdict winner, support the conviction beyond a reasonable
doubt. Where there is sufficient evidence to enable the trier
of fact to find every element of the crime has been
established beyond a reasonable doubt, the sufficiency of
the evidence claim must fail.
The evidence established at trial need not preclude every
possibility of innocence and the fact-finder is free to believe
all, part, or none of the evidence presented. It is not within
the province of this Court to re-weigh the evidence and
substitute our judgment for that of the fact-finder. The
Commonwealth’s burden may be met by wholly
circumstantial evidence and any doubt about the
defendant’s guilt is to be resolved by the fact-finder unless
the evidence is so weak and inconclusive that, as a matter
of law, no probability of fact can be drawn from the
combined circumstances.
Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super.
2016) (quoting Commonwealth v. Tarrach, 42 A.3d 342, 345
(Pa.Super. 2012)).
Commonwealth v. Izurieta, 171 A.3d 803, 806 (Pa. Super. 2017) (internal
brackets omitted).
Indecent Assault without Consent
Appellant first contends that the evidence was insufficient to sustain his
conviction for indecent assault without consent, “where the record failed to
establish the [Victim] lacked consent.” Appellant’s Brief at 11. According to
Appellant:
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[T]he [Victim]’s testimony, when viewed in the light most
favorable to the Commonwealth, did not communicate a lack of
consent to [Appellant] prior to the attempted kiss. . . . The
[Victim] testified that [Appellant] pulled her in the vehicle by the
back of her head, however, this is contrary to surveillance tape,
as the [Victim] is raising on her toes, leaning into the vehicle to
hug [Appellant] again at 4 minutes, 58 seconds, before what is
allegedly [Appellant]’s hand on the right side goes toward the
[Appellant]’s head at 4 minutes, 59 seconds. See N.T.,
2/15/[20]18, at 63, 77.
Id. at 12-13 (footnote omitted) (some formatting).
A person is guilty of indecent assault if the person has indecent
contact with the complainant, causes the complainant to have
indecent contact with the person or intentionally causes the
complainant to come into contact with seminal fluid, urine or feces
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. § 3126(a)(1) (some formatting).3
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3Appellant does not contest that the evidence was sufficient to establish that
he had indecent contact with the Victim. Appellant’s Brief at 12 n.5.
In its analysis of the sufficiency of the evidence to support Appellant’s
conviction for indecent assault without consent, the trial court opinion
references Commonwealth v. Capo, 727 A.2d 1126, 1127 (Pa. Super.
1999). Trial Court Opinion, filed July 23, 2018, at 3 n.1. Appellant contends:
“The instant case is unlike Capo, where the defendant challenged the
sufficiency of the evidence underlying conviction for indecent assault –without
consent on the grounds that his actions did not fall within the statutory
definition of an indecent contact[,]” while, in the current case, Appellant is
challenging the element of lack of consent. Appellant’s Brief at 14.
Appellant is correct that the appellant in Capo challenged the sufficiency of
the evidence establishing indecent contact and “does not and cannot claim
that his actions were performed with the victim’s consent.” 727 A.2d at 1127.
However, although the trial court’s citation to Capo was inapt, it is also non-
dispositive of the ultimate issue – i.e., whether the evidence at Appellant’s
trial was sufficient to establish the element of lack of consent. That is to say,
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In the current action, viewing all “the evidence admitted at trial, and all
reasonable inferences drawn therefrom,” in the “light most favorable to the
Commonwealth as verdict winner,” Izurieta, 171 A.3d at 806, the Victim’s
explicit testimony that she did not want Appellant’s arm around her and his
tongue touching her lips while she kept her mouth closed, N.T., 2/15/2018,
at 51, 79, established that the Victim did not consent to Appellant’s contact.
18 Pa.C.S. § 3126(a)(1). The Victim’s lack of consent was underscored by
her repeated testimony that she attempted to pull away from Appellant and
was prevented from doing so by him. N.T., 2/15/2018, at 51, 79. The Victim
further testified that she felt “really uncomfortable,” and this Court has
previously found that a victim’s testimony about how an appellant’s acts made
her feel were sufficient to establish the victim’s lack of consent. See
Commonwealth v. Velez, 51 A.3d 260, 266 (Pa. Super. 2012) (“viewing the
evidence in a light most favorable to the Commonwealth,” the victim’s
testimony that the “[a]ppellant’s acts were bad” and “did not feel right” and
that she was “afraid and angry at [a]ppellant” were sufficient to establish the
victim’s lack of consent). The Commonwealth did not need to present any
additional testimony on the element of consent besides the Victim’s testimony,
as a victim’s uncorroborated testimony alone can provide sufficient evidence
to establish that a defendant is guilty of indecent assault. See 18 Pa.C.S.
____________________________________________
even if we ignore the entirety of footnote 1 in the trial court opinion, Trial
Court Opinion, filed July 23, 2018, at 3 n.1, our affirmance of Appellant’s
judgment of sentence, including his conviction for indecent assault without
consent, would be unaltered.
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§ 3106 (“The testimony of a complainant need not be corroborated in
prosecutions under this chapter.”); see also Izurieta, 171 A.3d at 807;
Commonwealth v. Shaffer, 763 A.2d 411, 414 (Pa. Super. 2000);
Commonwealth v. Cody, 584 A.2d 992, 993 (Pa. Super. 1991).
Furthermore, contrary to Appellant’s contention in his brief, see
Appellant’s Brief at 12, the Victim did not need to communicate her lack of
consent to Appellant prior to the indecent contact. See Izurieta, 171 A.3d
at 807 (evidence was sufficient to support the appellant’s conviction for
indecent assault without consent, when, after indecent contact, the victim
pushed away the appellant and told him that she did not want to “do this”);
cf. 18 Pa.C.S. § 3107 (“The alleged victim need not resist the actor in
prosecutions under this chapter”).
As for Appellant’s argument that the trial court misconstrued the content
of surveillance video and what it showed about the Victim’s consent,
Appellant’s Brief at 13, Appellant is requesting that we “re-weigh the evidence
and substitute our judgment for that of the fact-finder[,]” which we cannot
and will not do. Izurieta, 171 A.3d at 806. “[A]ny doubts” regarding the
content of the surveillance video and what it showed about the Victim’s
consent were “to be resolved” by the trial court as “fact-finder” and not by
this Court. Id.
Thus, Appellant has failed to establish that the evidence was insufficient
to support his conviction for indecent assault without consent. Appellant’s
first issue therefore is meritless.
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Indecent Assault by Forcible Compulsion
Next, Appellant argues that the evidence was insufficient to sustain his
conviction for indecent assault by forcible compulsion,4 “where the record
failed to establish forcible compulsion.”5 Appellant’s Brief at 15.6 Appellant
continues: “The [Victim]’s testimony that [Appellant] pulled her into the
vehicle was belied by the surveillance video, which shows the [Victim] moving
toward the vehicle immediately prior to [Appellant] making physical contact
with her, and [the Victim]’s testimony that she was leaning into the vehicle to
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4 A person is guilty of indecent assault if the person has indecent
contact with the complainant, causes the complainant to have
indecent contact with the person or intentionally causes the
complainant to come into contact with seminal fluid, urine or feces
for the purpose of arousing sexual desire in the person or the
complainant and the person does so by forcible compulsion[.]
18 Pa.C.S. § 3126(a)(2) (some formatting).
5 “Forcible compulsion” is defined as: “Compulsion by use of physical,
intellectual, moral, emotional or psychological force, either express or
implied.” 18 Pa.C.S. § 3101.
The force necessary to establish “forcible compulsion” “need only be such as
to establish lack of consent and to induce the victim to submit without
additional resistance.” Commonwealth v. Farmer, 758 A.2d 173, 181 (Pa.
Super. 2000) (citations and internal brackets omitted); cf. Commonwealth
v. Jones, 771 A.2d 796, 799 (Pa. Super. 2001) (“force,” as defined for
robbery, is “that of which the victim is aware and by reason of that force, is
compelled to part with his property” (citations omitted)).
6 Again, Appellant does not contest that the evidence was sufficient to
establish that he had indecent contact with the Victim. See Appellant’s Brief
at 12 n.5; see generally id. at 15-17.
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give [Appellant] another hug.” Id. at 16 (citing N.T., 2/15/2018, at 63, 77;
Commonwealth v. Robinson, 817 A.2d 1153, 1158 (Pa. Super. 2003)).
By asking us to re-interpret the surveillance video in a manner contrary
to the trial court, id., Appellant is again requesting that we “re-weigh the
evidence and substitute our judgment for that of the fact-finder[,]” which we
cannot and will not do. Izurieta, 171 A.3d at 806. In concluding that
Appellant “had indecent contact (kissing) with the [V]ictim by forcible
compulsion[,]” the trial court found, after listening to testimony and viewing
the surveillance video, that “Appellant plac[ed] his hand on the back of the
[V]ictim’s head, pull[ed] her in through his window, and [did] not let[] her
go[,]” then “tried giving her a kiss[] and told her to open her mouth.” Trial
Court Opinion, filed July 23, 2018, at 5-6 (citing N.T., 2/15/2018, at 47-49,
62-63). “[A]ny doubts” regarding the content of the surveillance video and
what it showed about Appellant’s use of force were “to be resolved” by the
trial court as “fact-finder” and not by this Court. Izurieta, 171 A.3d at 806.
For this reason, Appellant’s second issue is without merit.
Harassment
Finally, Appellant urges this Court to conclude that the evidence was
insufficient to sustain his conviction for harassment – subjects the other
person to physical contact,7 “where the record failed to establish [he]
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7Harassment – subjects the other person to physical contact is defined in its
entirety as follows: “A person commits the crime of harassment when, with
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possessed the requisite specific intent[,]” Appellant’s Brief at 17 – i.e., an
“intent to harass, annoy or alarm another[.]” 18 Pa.C.S. § 2709(a)(1).
Appellant continues that “the record fails to establish that [Appellant] knew or
should have known that a gradual increase in physical contact would harass,
annoy or alarm the [Victim].” Appellant’s Brief at 18 (emphasis in original)
(citation omitted).8
“An intent to harass may be inferred from the totality of the
circumstances.” Commonwealth v. Cox, 72 A.3d 719, 721 (Pa. Super.
2013) (citation omitted).
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intent to harass, annoy or alarm another, the person strikes, shoves, kicks or
otherwise subjects the other person to physical contact, or attempts or
threatens to do the same.” 18 Pa.C.S. § 2709(a)(1) (some formatting).
8 The trial court explained that it convicted Appellant of harassment, because
“the Commonwealth established beyond a reasonable doubt, based on the
totality of the circumstances, that Appellant intended to harass, annoy, or
alarm the [V]ictim by subjecting her to physical contact knowing the [V]ictim
was not interested in Appellant, felt uncomfortable, and repeatedly asked
Appellant to let her go.” Trial Court Opinion, filed July 23, 2018, at 6-7.
Appellant takes umbrage with this final statement, maintaining: “contrary to
the [trial] court’s opinion that the [Victim] ‘repeatedly asked [Appellant] to let
her go’, the [Victim] testified that she raised her voice and told [Appellant] to
stop, once, and he did.” Appellant’s Brief at 18 (quoting Trial Court Opinion,
filed July 23, 2018, at 7; N.T., 2/15/2018, at 77).
We note that nowhere in her testimony did the Victim state that she “told
[Appellant] to stop, once[.]” Id. (emphasis added). The Victim repeatedly
testified that she told Appellant to stop, but she never specified that she only
made this request one time. N.T., 2/15/2018, at 77. Thus, Appellant’s
description of the Victim’s testimony is inaccurate. Appellant’s Brief at 18.
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In the current appeal, pursuant to the totality of the circumstances,
Cox, 72 A.3d at 721, the trial court could have reasonably inferred that
Appellant knew the Victim was not interested in him, felt uncomfortable, and
asked him to release her, and, accordingly, the court could have inferred
Appellant’s intent “to harass, annoy or alarm” the Victim. 18 Pa.C.S.
§ 2709(a)(1); Izurieta, 171 A.3d at 806; N.T., 2/15/2018, at 51, 77, 89;
Trial Court Opinion, filed July 23, 2018, at 6-7.9 Hence, the Commonwealth
has sustained its burden of proving the challenged element of the crime, and
Appellant’s final issue lacks merit.
Based on the foregoing, Appellant is not entitled to relief.
Judgment of sentence affirmed.
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9 Additionally, the requisite intent may be found where there is no evidence
of any purpose other than the harassment, annoyance, or alarming of the
Victim. Cox, 72 A.3d at 722 n.5. Appellant fails to suggest any other purpose
for his actions or otherwise explain his actions, see Appellant’s Brief at 17-
19; although, even if he had, the trial court, as fact-finder, still could have
chosen to disbelieve him and to have discerned a different intent from his
actions. See Commonwealth v. Hart, 559 A.2d 584, 587 (Pa. Super. 1989)
(“In addressing the proper interpretation of the statutory phrase ‘with intent
to harass,’” this Court noted that “[t]he law does not permit an actor to avoid
the consequences of his conduct by disclaimers of an intent to injure or harm
or offend or ‘harass.’ Rather, the law obliges the fact[-]finder to rely for the
discernment of intent upon demonstrative manifestation of that intent.”
(citation omitted)).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/19
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