Com. v. Khinchegashvili, O. ( 2020 )


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  • J. A17041/20
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
    :          PENNSYLVANIA
    v.                    :
    :
    IGOR KHINCHEGASHVILI,                    :         No. 1033 EDA 2019
    :
    Appellant        :
    Appeal from the Judgment of Sentence Entered November 20, 2018,
    in the Court of Common Pleas of Philadelphia County
    Criminal Division at No. CP-51-CR-0007396-2017
    BEFORE: BOWES, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.
    MEMORANDUM BY FORD ELLIOTT, P.J.E.:               FILED OCTOBER 13, 2020
    Igor Khinchegashvili appeals the November 20, 2018 judgment of
    sentence, entered in the Court of Common Pleas of Philadelphia County, after
    a jury convicted him of sexual assault.1 The trial court sentenced appellant to
    four to eight years’ imprisonment, followed by one year’s probation. After
    careful review, we affirm.
    The trial court summarized the facts of the case as follows.
    On July 6, 2006, the [victim] . . . met [a]ppellant at
    the Red Lion Tavern. The [victim] told [a]ppellant
    that she was not interested in dating anyone due to
    her having to support five children alone after
    breaking up with her fiancé a year prior. [] Appellant
    offered to drive the [victim] home. However, once in
    [a]ppellant’s truck, the [victim] asked him to drop her
    off elsewhere because she did not want [a]ppellant to
    1 18 Pa.C.S.A. § 3124.1. Appellant was acquitted of rape and rape of an
    unconscious person. 18 Pa.C.S.A. §§ 3121(a)(1) and (a)(3), respectively.
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    know where she lived. The [victim] testified that
    [a]ppellant became rude after she explained her
    unwillingness to date anyone.
    The [victim] later recalled being dragged through
    rocks and weeds. She also remembers [a]ppellant on
    top of her and holding her down. The [victim] did not
    consent to having sex with [a]ppellant. The [victim]
    passed out and woke the next morning in an
    abandoned lot, naked, soaking wet, and feeling pain
    in her vagina.
    Police Officer Vincent Labrice found the [victim] visibly
    upset and distraught.         The [victim] described
    [a]ppellant as a “white male, Russian, blonde hair,
    approximately six foot, two hundred pounds, medium
    build, blue jeans, white shirt . . . [.] Officer Labrice
    then drove the [victim] to Episcopal Hospital where a
    rape kit was administered. A vaginal sample from the
    rape kit tested positive for semen. On January 7,
    2016, a DNA sample from [a]ppellant [was found to]
    match[] the semen recovered from the rape kit.
    Trial court opinion, 9/6/19 at 3-4 (footnotes and quotation marks omitted).
    The complaint in this case was filed on June 21, 2017.           A jury trial
    commenced on September 12, 2018,2 and appellant was found guilty of sexual
    assault. On November 20, 2018, the appellant was sentenced. Appellant filed
    2   Jury selection began on September 10, 2018.
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    a timely post-sentence motion on December 3, 2018.3 On April 2, 2019, the
    motion was denied by operation of law, and appellant filed his appeal on
    April 8, 2019. The trial court ordered appellant to file a concise statement of
    errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).           Appellant
    timely complied. The trial court then filed its Rule 1925(a) opinion.
    Appellant raises the following issues on appeal:
    1.    In this prosecution for an eleven-year-old
    sexual assault, which was initiated following a
    DNA CODIS hit, did not the lower court err and
    abuse its discretion in denying the motion to
    dismiss pursuant to Pa.R.Crim.P. 600([A])
    where the appellant had requested the
    Commonwealth’s DNA lab report pursuant to
    mandatory discovery at the first pre-trial
    conference, the Commonwealth continued to
    hold him in custody, but failed to turn over the
    report until 328 days had passed under
    Rule 600([A]), and where, even then, the
    Commonwealth requested a “later date” for trial
    444 days out?
    2.    Was not the evidence insufficient to sustain a
    verdict of guilt[y] on the charge of sexual
    assault insofar as the evidence offered by the
    3 We note that on January 15, 2020, this court entered a rule directing
    appellant to show cause why this appeal should not be quashed as untimely.
    Appellant’s post-sentence motion was required to be filed by November 30,
    2018, but the docket reflects it was filed on December 3, 2018. See
    Pa.R.Crim.P. 720(A)(1). If appellant’s post-sentence motion was untimely,
    then appellant’s appeal was required to be filed by December 20, 2018. See
    Pa.R.Crim.P. 720(A)(3). In response to the rule, appellant maintains his
    post-sentence motion was timely filed because it was filed electronically on
    November 30, 2018, at 4:18 p.m. Thereafter, this court discharged the rule
    to show cause and advised that the issue would be decided by the merits
    panel. The post-sentence motion attached to appellant’s response supports
    appellant’s contention that the motion was timely e-filed, and therefore, his
    appeal is timely.
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    complainant that [a]ppellant engaged in
    non-consensual      sex    was    so   internally
    contradictory and in such conflict with
    uncontested facts as to make any verdict based
    upon such a record a matter of conjecture and
    insufficient to support a conviction as a matter
    of law?
    3.    Was not the verdict so contrary to the weight of
    the evidence as to shock the conscience and
    require that a new trial be awarded?
    Appellant’s brief at 5.
    Appellant alleges that the trial court erred in denying his motion to
    dismiss, pursuant to Pa.R.Crim.P. 600(A)(2)(a), because the Commonwealth
    failed to bring him to trial within 365 days. Specifically, appellant asserts that
    the time attributable to defense continuances should be charged against the
    Commonwealth because they were occasioned by the Commonwealth’s failure
    to provide the Bode report4 and the DNA case file until May 17, 2018.
    (Appellant’s brief at 7-8, 10, 39-41.)
    As a prefatory matter, in appellant’s “preliminary” 5 Rule 1925(b)
    statement, with respect to Pa.R.Crim.P. 600, appellant raised the following
    issue:
    The court erred in denying defendant’s [m]otion to
    [d]ismiss [p]ursuant to Pa.R.Crim.P. 600(A) where
    4   Bode Technology provides forensic DNA analysis. See www.bodetech.com.
    5 On April 30, 2019, appellant initially filed a timely “Preliminary Statement of
    Errors Complained of on Appeal” and a request for an extension of time to file
    an amended Rule 1925(b) statement after appellant received all the notes of
    testimony. The certified record reflects that the trial court did not rule on the
    request and appellant did not file an amended Rule 1925(b) statement.
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    the Commonwealth failed to bring [appellant] to trial
    within 365 days due to lack of due diligence and
    violated his rights to a speedy trial.
    Appellant’s preliminary statement of errors complained of on appeal, 4/30/19
    at unnumbered 2, paragraph 2(c).
    This court has held that:
    [a] Rule 1925(b)statement must be specific enough
    for the trial court to identify and address the issue [an
    appellant] wishe[s] to raise on appeal. A] [c]oncise
    [s]tatement which is too vague to allow the court to
    identify the issues raised on appeal is the functional
    equivalent of no [c]oncise [s]tatement at all.
    Commonwealth v. Scott, 
    212 A.3d 1094
    , 1112 (Pa.Super. 2019) (citation
    and quotation marks omitted), appeal denied, 
    222 A.3d 383
    (Pa. 2019).
    Moreover,
    [w]hen a court has to guess what issues an appellant
    is appealing, that is not enough for meaningful review.
    When an appellant fails adequately to identify in a
    concise manner the issues sought to be pursued on
    appeal, the trial court is impeded in its preparation of
    a legal analysis which is pertinent to those issues.
    Commonwealth v. Reeves, 
    907 A.2d 1
    , 2 (Pa.Super. 2006), appeal
    denied, 
    919 A.2d 956
    (Pa. 2007).
    Here, appellant’s Rule 1925(b) statement failed to identify the issue
    appellant now raises, i.e., that the defense continuances were caused by the
    Commonwealth’s failure to provide the DNA lab report, and therefore, the time
    should not be excluded for the purposes of Rule 600 calculations. As this issue
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    was not raised, the trial court did not address it in its Rule 1925(a) opinion.
    Thus, appellant waived his Rule 600 issue due to his lack of specificity.
    Nevertheless, we will address appellant’s Rule 600 issue. Our standard
    of review, as it relates to a violation of Rule 600, is as follows:
    In evaluating Rule 600 issues, our standard of review
    of a trial court’s decision is whether the trial court
    abused its discretion. Judicial discretion requires
    action in conformity with law, upon facts and
    circumstances judicially before the court, after
    hearing and due consideration. An abuse of discretion
    is not merely an error of judgment, but if in reaching
    a conclusion the law is overridden or misapplied or the
    judgment exercised is manifestly unreasonable, or the
    result of partiality, prejudice, bias, or ill will, as shown
    by the evidence or the record, discretion is abused.
    An appellate court must view the facts in the light
    most favorable to the prevailing party.” [W]hen
    considering the trial court’s ruling, this Court is not
    permitted to ignore the dual purpose behind Rule 600
    . . . (1) the protection of the accused’s speedy trial
    rights, and (2) the protection of society. So long as
    there has been no misconduct on the part of the
    Commonwealth in an effort to evade the fundamental
    speedy trial rights of an accused, Rule 600 must be
    construed in a matter consistent with society’s right
    to punish and deter crime. If the delay occurred as
    the     result   of    circumstances     beyond     the
    Commonwealth’s control and despite its due diligence,
    the time is excluded.
    Commonwealth v. Carter, 
    204 A.3d 945
    , 947-948 (Pa.Super. 2019)
    (citations and quotation marks omitted).
    Pa.R.Crim.P. 600 states, in relevant part, that “[t]rial in a court case in
    which a written complaint is filed against the defendant shall commence within
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    365   days     from    the   date   on    which    the   complaint      is   filed.”
    Pa.R.Crim.P. 600(A)(2)(a). In calculating time,
    periods of delay at any stage of the proceedings
    caused     by    the    Commonwealth       when     the
    Commonwealth has failed to exercise due diligence
    shall be included in the computation of the time within
    which trial must commence. Any other periods of
    delay shall be excluded from the computation.
    Pa.R.Crim.P. 600(C)(1).
    As explained in Commonwealth v. Armstrong, 
    74 A.3d 228
    , 236
    (Pa.Super. 2013) (citations and brackets omitted), appeal denied, 
    84 A.3d 1061
    (Pa. 2014):
    [T]he courts of this Commonwealth employ three
    steps . . . in determining whether Rule 600 requires
    dismissal of charges against a defendant.        First,
    Rule 600(A) provides the mechanical run date.
    Second, we determine whether any excludable time
    exists pursuant to Rule 600(C). We add the amount
    of excludable time, if any, to the mechanical run date
    to arrive at an adjusted run date.
    If the trial takes place after the adjusted run date, we
    apply the due diligence analysis set forth in
    Rule 600(D).       As we have explained, Rule 600
    encompasses a wide variety of circumstances under
    which a period of delay was outside the control of the
    Commonwealth and not the result of the
    Commonwealth’s lack of diligence. Any such period of
    delay results in an extension of the run date. Addition
    of any Rule 600 extensions to the adjusted run date
    produces the final Rule 600 run date.             If the
    Commonwealth does not bring the defendant to trial
    on or before the final run date, the trial court must
    dismiss the charges.
    Due diligence is a fact-specific concept that must be
    determined on a case-by-case basis. Due diligence
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    does not require perfect vigilance and punctilious
    care, but rather a showing by the Commonwealth that
    a reasonable effort has been put forth.
    Id. (citations, brackets, and
    quotation marks omitted).
    Instantly, we note that the Commonwealth passed the DNA evidence to
    appellant at the preliminary hearing. (Notes of testimony, 8/24/18 at 23, 24.)
    Because this was a CODIS[6] hit sexual assault, we
    had to pass the DNA at the prelim[inary hearing]. So,
    at that point, we passed the trace lab report that
    indicated that there was DNA on the victim back in
    2006, and we passed the CODIS hit report that
    indicated that there was, in fact, a match at the state
    level.
    Id. Appellant, however, additionally
    requested the Bode report and the DNA
    lab file. (Id. at 32, 33.) The certified record reflects that, as a courtesy7 to
    appellant, the Commonwealth requested this information, via email, from the
    forensic laboratory on January 9, 2018.8 (Id. at 42, 43.) The following day,
    the Bode report was sent to the Commonwealth and appellant’s counsel. (Id.
    at 53, 62 – Exhibit C-2.) The DNA lab file was not immediately sent because,
    as noted by Ryan Gallagher, the forensic laboratory manager lost track of the
    Commonwealth’s request. (Id. at 58.) The Commonwealth re-submitted the
    6   CODIS stands for Combined DNA Index System.
    7 Appellant’s counsel, a public defender, could have emailed the lab and
    obtained the information requested. (Id. at 36.)
    8 Appellant’s counsel was CCed on the emails exchanged between the
    Commonwealth and the forensic laboratory, and the information attached to
    those emails.
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    request in April of 2018, and the lab emailed the lab report on April 23, 2018.
    (Id. at 57.) Thus, the trial court did not abuse its discretion in finding that
    the Commonwealth made a reasonable effort to obtain the information, and
    therefore, appellant’s requested continuances were chargeable to appellant.9
    See Commonwealth v. Moore, 
    214 A.3d 244
    , 248-249 (Pa.Super. 2019)
    (finding   delay   excusable   when    caused    by    circumstances   beyond
    Commonwealth’s control despite its due diligence), appeal denied, 
    224 A.3d 360
    (Pa. 2020).
    As to appellant’s Rule 600 claim in general, taking the evidence in the
    light most favorable to the Commonwealth as the prevailing party, the
    pre-trial court10 made the following findings:
    THE COURT: So we’re back on the record for the
    public defender’s petition, 600(A) motion.       I am
    vacating all of the time findings that I made earlier in
    this proceeding so that I can make them all here at
    the same time and then the record will be clear as to
    9 In addition, as noted by the forensic laboratory manager, once the file is
    ready, anyone can pick it up; and public defenders can order DNA lab files.
    (Id. at 64) Here, appellant neither requested the file from the lab nor came
    to the lab to review it. (Id. at 58.) As the evidence sought was obtainable
    by appellant, there is no merit to appellant’s argument that the time
    attributable to defense continuances should be charged against the
    Commonwealth. See, e.g., Commonwealth v. Santos, 
    176 A.3d 877
    (Pa.Super. 2017) (finding, in the context of Brady, when evidence is equally
    accessible to Commonwealth and defense, defense cannot use discovery rules
    against Commonwealth for its failure to produce the evidence), appeal
    denied, 
    189 A.3d 986
    (Pa. 2018).
    10 Here, the hearing on the Rule 600 motion was conducted by a pre-trial
    judge, and the trial judge conducted the trial and authored the Rule 1925(a)
    opinion.
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    what my findings are with regard to those periods of
    time.
    So the time that I am ruling against [the]
    Commonwealth, meaning the time that will count
    against the Commonwealth and in favor of the
    defense are as follows: June 21st through July 6th for
    15 days; July the 20th through August the 3rd,
    14 days; August 3rd through August 31st, for 28
    days. I’m saying August 31st to September 14th, but
    I’ve already included August 31st, so really it’s
    September 1st through September 14th for 13 days.
    MS. McDONALD[11]: I’m sorry. September 1st to the
    14th?
    THE COURT: September 1st to the 14th, 13 days.
    And then September 15th through October 3rd for
    19 days; March the 20th through April 16th for
    27 days; April 16th through April 18th for two days;
    and then April the 19th through July 16th, which is
    that EPD date for 88 days. All other time is extendable
    with the exception of those days that were previously
    marked as excludable on the docket.
    Any questions about any of the time periods or what
    I’ve said?
    MS. McDONALD: No, [y]our Honor.
    THE COURT: So needless to say, counsel’s motion at
    this point is denied. At least you have clarity or a
    record with regard to the time going forward.
    MS. BINFORD[12]: Thank you.
    Notes of testimony, 8/24/18 at 113-114 (emphasis omitted).
    11   The assistant District Attorney representing the Commonwealth.
    12   Appellant’s counsel for purposes of the Rule 600 motion.
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    The following dates were not contested by the Commonwealth:
    June 21–July 6, 2017, September 14–October 3, 2017, and March 20–
    April 18, 2018.    (See notes of testimony, 8/24/18 at 11, 22, and 79-83,
    respectively.)    Whether the dates of July 20–August 3, 2017, August 3–
    August 31, 2017, and August 31–September 14, 2017, were attributable to
    the Commonwealth was argued, and the record supports the pre-trial court’s
    findings.   (See notes of testimony, 8/24/18 at 12-16, 16-19, and 20-21,
    respectively.)    Thus, the pre-trial court did not abuse its discretion in
    attributing 211 days13 to the Commonwealth.
    Further, the trial court, in its Rule 1925(a) opinion, found as follows:
    The complaint was filed on June 21, 2017. The
    104 days from the date the complaint was filed to the
    [p]re-[t]rial [c]onference on October 3, 2017 counted
    against the Commonwealth as normal progression of
    the case. However, the [p]re-[t]rial [c]onference was
    continued at the [d]efense’s request for further
    investigation on October 3, 2017, December 12,
    2017, January 9, 2018, and February 20, 2018.
    Therefore, the 168 days between October 3, 2017 and
    the [p]re-[t]rial [c]onference on March 20, 2018
    [were] excluded from the time computation because
    this delay was beyond the Commonwealth’s control.
    Trial court opinion, 9/6/19 at 8 (footnote omitted). The exclusion of these
    dates is supported by the findings of the pre-trial court and a review of the
    docket. (See notes of testimony, 8/24/18 at 23-29, 29-38, 39-64, and 69-70,
    respectively.)
    13 Calculated by including the first and last day of each time period and
    adjusting for overlapping dates.
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    Pursuant to 
    Armstrong, supra
    , the mechanical run date was June 21,
    2018.     See Pa.R.Crim.P. 600(A)(2)(a).        Adding the excludable time of
    168 days to that date results in an adjusted run date of December 6, 2018.
    Therefore, the trial in this case, which took place almost three months prior
    to the adjusted run date, was timely and the pre-trial court did not abuse its
    discretion in finding no Rule 600 violation.
    Appellant next contends there was insufficient evidence to sustain his
    conviction for sexual assault because of inconsistencies between the victim’s
    initial statements to the police in 2006 and statements made to the police in
    2016. (See appellant’s brief at 11-20, 27, 43-45.) He further argues that the
    victim’s accusations “were directly contradicted by physical evidence,
    investigations, and the results of a scientific test.”         (Id. at 27, 48-49.)
    However, the gist of appellant’s argument is that the Commonwealth did not
    prove, beyond a reasonable doubt, that the victim did not consent to sexual
    intercourse. (Id. at 45.)
    As to challenges to the sufficiency of the evidence,
    [o]ur standard of review for a challenge to the
    sufficiency of the evidence is well settled. We must
    view all the evidence in the light most favorable to the
    verdict winner, giving that party the benefit of all
    reasonable inferences to be drawn therefrom.
    Additionally, it is not the role of an appellate court to
    weigh the evidence or to substitute our judgment for
    that of the fact-finder.
    Commonwealth v. Alford, 
    880 A.2d 666
    , 669-670 (Pa.Super. 2005),
    appeal denied, 
    890 A.2d 1055
    (Pa. 2005), quoting Commonwealth v.
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    Gruff, 
    822 A.2d 773
    , 775 (Pa.Super. 2003), appeal denied, 
    863 A.2d 1143
    (Pa. 2004) (citations omitted).
    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.
    Commonwealth v. Tejada, 
    107 A.3d 788
    , 792-793 (Pa.Super. 2015)
    (citations omitted), appeal denied, 
    119 A.3d 351
    (Pa. 2015).
    Pursuant to 18 Pa.C.S.A. § 3124.1, a person commits sexual assault
    when he “engages in sexual intercourse or deviate sexual intercourse with a
    complainant without the complainant’s consent.”
    Id. As noted by
    the trial
    court,
    [a]ccording to 18 Pa.C.S.[A.] § 3101, sexual
    intercourse includes vaginal intercourse and
    intercourse per os or per anus, with some
    penetration however slight.         Deviate sexual
    intercourse is sexual intercourse per os or per anus
    between human beings and any form of sexual
    intercourse with an animal.
    Id. Sexual assault is
                  proven if the intercourse occurred without the
    complainant’s consent.         Commonwealth v.
    Andrulewicz, 
    911 A.2d 162
    , 165-166 (Pa. Super.
    2015).     The courts have further held that
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    “[r]esistance to the sexual assault is not a requisite
    for sustaining a conviction for sexual assault.”
    Id. Trial court opinion,
    9/6/19 at 16. “Furthermore, the uncorroborated testimony
    of the complaining witness is sufficient to convict a defendant of sexual
    offenses.” Commonwealth v. Cramer, 
    195 A.3d 594
    , 602 (Pa.Super. 2018)
    (citation omitted).
    As found by the trial court:
    In the instant case, the evidence established that
    [a]ppellant and the [victim] engaged in vaginal
    intercourse. The rape kit performed on the [victim],
    according to a forensic expert, tested positive for
    sperm. The evidence further established that the
    sperm found in the [victim]’s vagina matched
    [a]ppellant’s DNA. Moreover, the [victim] did not
    consent to sexual intercourse with [a]ppellant. She
    was under the impression that [a]ppellant was merely
    giving her a ride home. Instead, [a]ppellant drove her
    to an abandoned building and violently raped her.
    Given the evidence, the jury found that the
    Commonwealth established [s]exual [a]ssault beyond
    a reasonable doubt.
    Trial court opinion, 9/6/19 at 16-17 (footnotes and emphasis omitted). Here,
    the trial court aptly summarized the relevant facts to support the jury’s
    conclusion that the victim did not consent and that appellant committed sexual
    assault.   Thus, taking the evidence in the light most favorable to the
    Commonwealth, as verdict winner, the relevant facts support the jury’s
    conclusion, beyond a reasonable doubt, that the victim did not consent to the
    sexual encounter.
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    As his final issue, appellant asserts that the verdict was against the
    weight of the evidence. We review the trial court’s exercise of discretion in
    ruling on the weight claim, not the underlying question of whether the verdict
    was against the weight of the evidence. Commonwealth v. Champney, 
    832 A.2d 403
    , 408 (Pa. 2003). It is not our role, as a reviewing court, to reweigh
    the evidence and substitute our judgment for that of the fact-finder.
    Commonwealth v. Mitchell, 
    902 A.2d 430
    , 449 (Pa. 2006).               Further,
    “[r]esolving contradictory testimony and questions of credibility are matters
    for the factfinder.”   Commonwealth v. Mikitiuk, 
    213 A.3d 290
    , 305
    (Pa.Super. 2019) (citation omitted). “The essence of appellate review for a
    weight claim [lies] in ensuring that the trial court’s decision has record
    support. Where the record adequately supports the trial court, the trial court
    has acted within the limits of its discretion.” Commonwealth v. Clay, 
    64 A.3d 1049
    , 1054 (Pa. 2013) (citations and quotations omitted). To warrant a
    new trial on weight of the evidence grounds, “the evidence must be so
    tenuous, vague and uncertain that the verdict shocks the conscience of the
    court.” Commonwealth v. Sullivan, 
    820 A.2d 795
    , 806 (Pa.Super. 2003).
    Here, we concur with the trial court’s conclusion that the verdict was not
    against the weight of the evidence.
    The jury’s verdict does not shock the conscience.
    Although the [c]omplainant contradicted herself
    during the trial, she was raped over a decade ago, and
    the jury had an opportunity to take into consideration
    any inconsistencies during her testimony. However,
    what was unrefuted was that [a]ppellant’s DNA
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    matched the semen from the [victim]’s rape kit. This
    evidence was corroborated by other evidence in the
    record. The other evidence was that: 1.) the [victim]
    had pain in her vagina, 2.) she did not consent to
    having sex with [a]ppellant, and 3.) she informed the
    first responding police officer that she was raped.
    When one considers all of the evidence, [a]ppellant’s
    conviction was not against the weight of the
    evidence[.]
    Trial court opinion, 9/6/19 at 15 (footnote omitted).
    We, therefore, conclude that the trial court did not abuse its discretion
    in denying appellant’s motion for a new trial based on his weight of the
    evidence challenge.
    Judgment of sentence affirmed.
    Judgment Entered.
    JosephD.Seletyn,Esq.
    Prothonotary
    Date: 10/13/2020
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