Com. v. Silva, J.

J-S77008-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSE SILVA
Appellant No. 2748 EDA 2013
Appeal from the Judgment of Sentence entered November 1, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0011099-2008
BEFORE: STABILE, JENKINS, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE FILED FEBRUARY 09, 2015
Appellant, Jose Silva, appeals from the November 1, 2012 judgment of
sentence imposing 2½ to 5 years of incarceration for sexual assault (18
Pa.C.S.A. § 3124.1) followed by a consecutive 5 years of probation for
indecent assault of an unconscious victim (18 Pa.C.S.A. § 3126(a)(4)). We
affirm.
The assault of the victim took place in the early morning hours of June
15, 2008. The victim reported the assault the same day. Appellant was
arrested and proceeded to a bench trial on June 22, 2012. At the conclusion
of the trial, the judge found Appellant guilty of the aforementioned offenses.
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*
Retired Senior Judge assigned to the Superior Court.
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The trial court’s Pa.R.A.P. 1925(a) opinion sets forth the following
facts:
The [victim], age 40 at the time of trial, testified that on
June 14, 2008, she drove herself and two acquaintances, Melissa
Shepard and [Appellant] from her home in Philadelphia to a
mutual friend’s military deployment party at a nightclub in
Trenton, New Jersey. While there, they had three rounds of
cosmopolitan cocktails after which she became very ill and began
vomiting. Due to her condition, she had [Appellant] drive them
back to her home during which she continued vomiting. Her
companions assisted her to her bedroom and as she thought
they were leaving she fell asleep in her bed, when, at some point
after which, she awoke to find [Appellant] sitting on the edge of
her bed massaging her feet. She told him it was time for him to
go and escorted him downstairs to the front door; he asked for
and was given a hug but when he then started to try to kiss her
she pushed him away and then passed out on the stairs near the
front door. The next thing she remembered was waking up on
the couch in her basement with [Appellant] on top of her
engaging in intercourse, whereupon she pushed him away, put
her pants back on and had him leave, making it clear that she
never consented to having any sexual contact with him. She
went back upstairs, found Shepard asleep in her guest room,
returned to her bedroom and waited for Shepard to wake up,
after which Shepard drove her to the hospital where she
reported the incident to the police. Over the course of the rest
of the day and into the night she received numerous text
messages from [Appellant] profusely apologizing for the
incident; she emailed them to the investigating police officer and
the Commonwealth confirmed their receipt from [Appellant’s]
cell phone by submitting the telephone company records. The
Commonwealth then called the police officer who confirmed the
victim’s report of the rape and her sending him text messages,
followed by Shepard who confirmed attending the gathering and
the victim becoming ill and vomiting as they left the nightclub
and took her home, and Maureen Hahn, whom the complainant
had called and told her about the rape, who knew both her and
[Appellant] for a number of years and testified that the
complainant never expressed any attraction for [Appellant] and
that she never saw them socialize in any way.
Trial Court Opinion, 7/17/14, at 2-3.
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Appellant’s sole argument on appeal is that the Commonwealth failed
to produce sufficient evidence in support of his convictions. Appellant’s Brief
at 4. Specifically, he argues the victim consented to have intercourse with
him. We review Appellant’s argument as follows:
The standard we apply in reviewing the sufficiency of
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 factfinder 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
that of 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
trier 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. Feese, 79 A.3d 1101, 1119 (Pa. Super. 2013), appeal
denied, 94 A.3d 1007 (Pa. 2014).
Section 3124.1 of the Pennsylvania Crimes Code provides: “Except as
provided in section 3121 (relating to rape) or 3123 (relating to involuntary
deviate sexual intercourse), 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.A. § 3121.4 (emphasis added). A person commits indecent assault
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“if the person has indecent contact with the complainant […] and: […] (4)
the complainant is unconscious[.]” 18 Pa.C.S.A. § 3126(a)(4). Indecent
contact includes “Any touching of the sexual or other intimate parts of the
person for the purpose of arousing or gratifying sexual desire, in any
person.” 18 Pa.C.S.A. § 3101.
Appellant argues the victim consented to sexual intercourse. Thus, he
believes the evidence is insufficient because the trial court found him guilty
based solely on the victim’s uncorroborated assertion to the contrary. As set
forth above, the victim testified she passed out and woke up to find herself
naked from the waist down with Appellant on top of her having sexual
intercourse with her. N.T. Trial, 6/22/12, at 25-26. The victim testified she
never consented to having intercourse with Appellant. Id. at 27.
Appellant, testifying in his own defense, stated the victim began
kissing him as he was preparing to leave her home. Id. at 92. The two
then began “making out” and the victim said, “let’s have sex right here.”
Id. The two then moved to a couch in the basement and had consensual
intercourse. Id. at 92-93.
The trial court, sitting as finder of fact, found the victim’s account
credible and Appellant’s account not credible. We must afford great
deference to the trial court’s findings of fact. Commonwealth v.
Baumhammers, 92 A.3d 708, 717 (Pa. 2014). “[T]here is no justification
for an appellate court, relying solely upon a cold record, to review the fact-
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finder’s first-hand credibility determinations.” Commonwealth v. White,
734 A.2d 374, 381 (Pa. 1999). The trial court was free to believe “all, part,
or none of the evidence, Feese, 79 A.3d at 1119, and in this case the court
was free to believe the victim’s testimony and disbelieve that of Appellant.
Despite the foregoing, Appellant argues the evidence is insufficient
because the victim’s testimony is uncorroborated.1 According to Appellant,
this renders the evidence too weak and inconclusive to support a conviction.
The victim’s testimony, deemed credible by the trial court, establishes that
Appellant had sex with her without her consent and while she was
unconscious. This testimony sufficiently establishes the elements of
§§ 3124.1 and 3126(a)(4). “[U]nder prevailing Pennsylvania law, the
uncorroborated testimony of a sexual assault victim, if believed by the trier
of fact, is sufficient to convict a defendant.” Commonwealth v. Trippett,
932 A.2d 188, 201 (Pa. Super. 2007); see also 18 Pa.C.S.A. § 3106 (“The
testimony of a complainant need not be corroborated in prosecutions under
this chapter.”). If it were otherwise, it would be impossible to obtain a
conviction in a “he said, she said” case such as this one.
In addition, Appellant’s argument conveniently ignores the text
messages he sent to the victim apologizing for the incident. Those
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1
In the first sentence of the argument section of his brief, Appellant notes
his regret at failing to raise and preserve a challenge to the weight of the
evidence. Appellant’s Brief at 20.
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messages corroborate the victim’s assertion that Appellant acted without her
consent. At trial, Appellant construed those text messages as indicative of
his remorse that he cheated on his girlfriend, but the trial court disbelieved
Appellant’s explanation.
Appellant further argues the Commonwealth is potentially “hiding
something” by failing to introduce hospital records or a rape kit into
evidence, even though the victim went to the hospital and a rape kit was
performed. Appellant’s Brief at 24. This argument avails Appellant nothing,
as he fails to explain how the records would have undermined the victim’s
testimony that she did not consent to sexual intercourse. Appellant
admitted that he had sexual intercourse with the victim. Rape kit results
were not necessary to confirm that fact. The victim did not allege that a
violent physical struggle occurred. Thus, medical records were not
necessary to confirm or refute that scenario. See Commonwealth v.
Poindexter, 646 A.2d 1211, 1214 (Pa. Super. 1994) (“the 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.”). In any
event, Appellant does not argue the Commonwealth failed to disclose
exculpatory evidence in its possession, in violation of Pa.R.Crim.P. 573(B)
and Brady v. Maryland, 373 U.S. 83 (1963).
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In summary, the evidence of record is sufficient to support Appellant’s
convictions. Appellant’s arguments to the contrary lack merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/9/2015
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