Com. v. Luperi, M.

J-A18008-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

MAXWELL J. LUPERI :

:

Appellant : No. 1066 EDA 2024

Appeal from the Judgment of Sentence Entered November 22, 2023

In the Court of Common Pleas of Delaware County Criminal Division at

No(s): CP-23-CR-0000670-2022

BEFORE: OLSON, J., DUBOW, J., and BECK, J.

MEMORANDUM BY OLSON, J.: FILED APRIL 6, 2026

Appellant, Maxwell J. Luperi, appeals from the judgment of sentence

following his jury trial convictions for sexual assault, deviate sexual assault,

and three counts of indecent assault.1 After careful review, we affirm.

The trial court summarized the facts and procedural history of this case

as follows:

On September 4, 2021, the Radnor Police Department received a

call from Paoli Hospital reporting a sexual assault victim that was

in the Emergency Department. The assault allegedly occurred at

East Hall at Cabrini University. Officer Stephanie Racht of the

Radnor Police Department, met with [Sexual Assault Nurse

Examiner] Renee Postles who informed Racht that the victim

wanted to remain anonymous and did not want to get police

involved in the matter. However, on October 13, 2021, the

Radnor Police Department was contacted by the Delaware County

____________________________________________

1 18 Pa.C.S.A. §§ 3124.1 (proscribing both sexual intercourse and deviate

sexual intercourse without consent) and 3126 (indecent assault). The jury

also found Appellant not guilty of simple assault pursuant to 18 Pa.C.S.A.

§ 2701.

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Victim’s Assistance Center regarding a female [sexual assault]

victim who wanted to come forward. The Radnor Township Police

Department was able to determine that this victim was the same

one who was in Paoli Hospital Emergency Room on September 4,

2021. Detectives Jonathon Jagodinski and Thomas Schreiber,

both employed by the Radnor Township Police Department,

conducted an interview with this victim, [C.D. 2] During this

interview on October 13, [2021,] Victim explained what

happened, and was shown a photo of [Appellant], Maxwell Luperi,

whom she identified as the subject involved in the incident. []

Victim then initialed the photograph of [Appellant]. On October

15, 2021, Detective Jagodinski served a search warrant to Cabrini

University for reports and/or records related to [] the incident.

Detective Jagodinski reviewed [] Victim’s recorded interview on

September 8, 2021 with Cabrini University Public Safety

Investigator, Mary Anders, and determined that the information

[] Victim provided during that interview was consistent with what

she told him during their interview on October 13[, 2021].

Detective Jagodinski also reviewed Mary Anders’ recorded

interview with [Appellant], in which he acknowledges that he had

vaginal and anal sex with [] Victim, and that she was bleeding a

lot. He also stated in this interview that “he assumed he was

involved when he learned that there was a rape in East Residence

Hall upon his return to campus.”

Trial Court Opinion, 8/13/2024, at 1-2 (original brackets, footnote, and record

citations omitted).

Following a trial commencing on May 30, 2023, a jury found Appellant

guilty of the aforementioned charges, but not guilty of simple assault. On

November 22, 2023, the trial court imposed an aggregate sentence of 11½ to

23 months of incarceration, followed by five years of probation. The trial court

also determined that Appellant was required to register for life as a Tier III

____________________________________________

2 We refer to the victim as “Victim” or by her initials to protect her identity.

Appellant generally refers to her as the complainant.

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offender under the Sexual Offender Registration and Notification Act (SORNA).

See 42 Pa.C.S.A. § 9799.14(d)(2). This timely appeal resulted. 3

On appeal, Appellant presents the following issues for our review:

____________________________________________

3 On December 1, 2023, Appellant filed a timely post-sentence motion

challenging the weight of the evidence and his SORNA lifetime registration

requirement. Appellant’s motion remained outstanding until, on March 26,

2024, the trial court entered an order generally denying relief, but staying

imposition of a registration requirement pending a ruling by the Pennsylvania

Supreme Court in Commonwealth v. Torsilieri, 316 A.3d 77 (Pa. 2024),

which was ultimately decided on May 31, 2024. Because Appellant’s

registration requirement remained unresolved by the trial court’s March 26,

2024 order, that order did not completely dispose of Appellant’s post-trial

motions. Pursuant to Pa.R.Crim.P. 720(B)(3)(a), however, the trial court was

required to “decide the post-sentence motion, including any supplemental

motion, within 120 days of the filing of the motion.” Pa.R.Crim.P.

720(B)(3)(a). Because “the judge fail[ed] to decide the [entire] motion within

120 days, or to grant an extension [], the motion [was] deemed denied by

operation of law” on March 30, 2024. Id. Accordingly, “the clerk of courts

[was required] to enter an order on behalf of the court … that the post-

sentence motion [was] deemed denied” in its entirety. Pa.R.Crim.P.

720(B)(3)(c). Here, the clerk of courts did not enter an order deeming

Appellant’s post-sentence motion denied, nor did the clerk’s office notify

Appellant of the denial of his motion by operation of law. Ordinarily, “[i]f the

defendant files a timely post-sentence motion, the notice of appeal shall be

filed [] within 30 days of the entry of the order denying the motion by

operation of law in cases in which the judge fails to decide the motion.”

Pa.R.Crim.P. 720(A)(2)(b). However, “[t]his Court has previously held that,

where the clerk of courts does not enter an order indicating that the post-

sentence motion is denied by operation of law and notify the defendant of

same, a breakdown in the court system has occurred and we will not find an

appeal untimely under these circumstances.” Commonwealth v. Perry, 820

A.2d 734, 735 (Pa. Super. 2003) (citation omitted). Thus, when Appellant

filed his notice of appeal on April 1, 2024, one-day after our Supreme Court

decided Torsilieri, we consider the notice of appeal timely filed. On April 26,

2024, the trial court directed Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied

timely on May 17, 2024. On August 13, 2024, the trial court issued an opinion

pursuant to Pa.R.A.P. 1925(a).

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1. Did the trial court err by refusing to ask the members of the

jury pool whether they are more likely to believe the testimony

of a sexual assault complainant?

2. Did the trial court err by denying [Appellant’s] motion to strike

juror number 35 for cause after the juror indicated he would

be more likely to believe the testimony of a law enforcement

officer?

3. Was the evidence insufficient as to the [element] of

non-consent where even the complaining witness admitted that

the non-consent was not clear?

4. Even if the evidence was sufficient to support [Appellant’s]

convictions, did the trial court err when it denied [Appellant’s]

post-sentence motion challenging the weight of the evidence?

Appellant’s Brief at 3.

Appellant’s first two issues challenge the trial court's rulings pertaining

to jury voir dire and, therefore, we employ the following standard of review:

The Sixth and Fourteenth Amendments guarantee a defendant the

right to, inter alia, an impartial jury, and this right extends to both

the guilt and sentencing phases of trial. Thus, the jury selection

process is crucial to the preservation of a criminal defendant's

constitutional right to an impartial jury.

Voir dire plays a critical function in assuring the criminal defendant

that his right to an impartial jury will be honored. Without an

adequate voir dire, the trial judge's responsibility to remove

prospective jurors who will not be able impartially to follow the

court's instructions and evaluate the evidence cannot be fulfilled.

While this Court has explained that the scope of voir dire is within

the sound discretion of the trial court, the United States Supreme

Court has stated that the exercise of the trial court's discretion is

subject to the essential demands of fairness.

Moreover, the purpose of voir dire is solely to ensure the

empaneling of a competent, fair, impartial, and unprejudiced jury

capable of following the instructions of the trial court. Voir dire is

not to be utilized as a tool for the attorneys to ascertain the

effectiveness of potential trial strategies.

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The decision whether to disqualify a prospective juror is to be

made by the trial judge based on the juror's answers and

demeanor and will not be reversed absent a palpable abuse of

discretion. Appellate courts defer to the trial court's assessment

of a prospective juror's answers during voir dire because the trial

court is in the best position to assess the prospective juror's

credibility and fitness to serve.

Most importantly, we should give great weight to the trial court

judge's decision about striking jurors because the trial court judge

not only hears the words that the potential juror speaks, but also

the manner in which the juror says those words and is in a better

position than an appellate court to evaluate the significance of any

hesitancy of a potential juror:

The juror appears before the trial judge, who sees him and

hears what is said; and is able to form his opinion as much

from the proposed juror's conduct as from the words which

he utters, printed in the record. Hesitation, doubt, and

nervousness indicating an unsettled frame of mind, with

other matters, within the judge's view and hearing, but

which it is impossible to place in the record, must be

considered. As it is not possible to bring these matters to

our attention, the trial judge's view should be given great

weight in determining the matters before him.

Commonwealth v. Delmonico, 251 A.3d 829, 839–840 (Pa. Super. 2021)

(internal citations, quotations, ellipses, and original brackets omitted).

Moreover,

[i]t must be remembered the purpose of the voir dire examination

is to provide an opportunity to counsel to assess the qualifications

of prospective jurors to serve. It is therefore appropriate to use

such an examination to disclose fixed opinions or to expose other

reasons for disqualification. Thus the inquiry must be directed at

ascertaining whether the venireperson is competent and capable

of rendering a fair, impartial and unbiased verdict. The law also

recognizes that prospective jurors were not cultivated in

hermetically sealed environments free of all beliefs, conceptions

and views. The question relevant to a determination of

qualification is whether any biases or prejudices can be put

aside upon the proper instruction of the court.

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A challenge for cause to service by a prospective juror should be

sustained and that juror excused where that juror demonstrates

through his conduct and answers a likelihood of prejudice. The

decision whether to disqualify a venireman is within the discretion

of the trial court and will not be disturbed on appeal absent a

palpable abuse of that discretion.

Stated another way, the test of disqualification is the

juror's ability and willingness to eliminate the influence of

his scruples and render a verdict according to the evidence.

This determination is to be made by the trial judge based on the

juror's answers and demeanor and will not be reversed absent a

palpable abuse of discretion.

Commonwealth v. Penn, 132 A.3d 498, 502 (Pa. Super. 2016) (internal

citations, footnote, and quotations omitted; emphasis added).

In his first issue presented, Appellant claims that the trial court abused

its discretion when it denied his general request “to ask prospective jurors

whether anyone was more likely to believe a sexual assault complainant’s

testimony.” Appellant’s Brief at 7. More specifically, Appellant posits:

In this case, the circumstances of the particular alleged criminal

episode warranted the requested defense question. The case was

about whether the jury would believe [the complainant], a young

female who alleged that she was sexually assaulted on a college

campus by a young man. As a general matter, asking whether

any jurors have predilections to credit such a witness’ testimony

is no different than asking if anyone would be more likely to

believe a law enforcement officer [as argued in Appellant’s second

appellate issue presented].

In this particular case, however, the prevalent public and social

pressures in existence at the time of trial made it imperative that

the defense be allowed to ferret out bias. The incident in this case

happened at the height of the #MeToo movement, when for many

the conventional wisdom became that sexual assault complainants

were [] presumptively [to] be believed. A general question about

whether a juror would be more likely to believe a sexual assault

victim was entirely appropriate.

* * *

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[I]t was a non-intrusive, narrowly tailored, limited question that

could in and of itself yield[] crucial information that would have

affected the jury selection process. By refusing to [permit] this

general [inquiry of] the jury pool, the trial court palpably abused

its discretion.

Id. at 9-10. Appellant suggests he was prejudiced because “[t]he ultimate

makeup of the jury included four young college aged women and no college

aged men.” Id. at 10 n.5.

On this issue, the trial court stated:

[it] informed jurors at the beginning of the jury selection process

of the nature of the charges alleged. Additionally, [the trial c]ourt

went a step further [] and asked jurors during voir dire whether

they or anyone they knew had been the victims of or accused of

a crime similar to the ones alleged in [this] case. [The trial court]

then went on to examine the jurors individually who indicated

potential conflicts, and effectively determined whether each one

could remain fair and impartial. Jurors who were viewed as not

being able to do so were ultimately not chosen. In light of these

facts, absent any proof of palpable error, the exclusion of a

question during the voir dire process as to whether the jurors

would be more likely to believe the testimony of a person who

says they were sexually assaulted was not an abuse of

discretion[.]

Trial Court Opinion, 8/13/2024, at 7-8 (record citations omitted).

We agree with the trial court’s assessment. Our Supreme Court has

previously determined that there was no error in denying a request to ask

potential jurors if “you or anyone close to you has ever been the victim of

sexual assault” where the trial court also disclosed that the case involved a

sexual assault and then individually asked each venireperson if there were any

reasons that would prevent them from being fair. See Commonwealth v.

Ellison, 902 A.2d 419, 427–428 (Pa. 2006). The Ellison Court ultimately

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“declined to hold trial judges to a script in conducting voir dire examination”

and held that “trial judges may pose those questions that serve the purpose

of revealing whether prospective jurors are able to provide the accused with

competent, fair, impartial, and unprejudiced consideration.” Id. at 428.

Moreover, lending further support for our decision herein, on September 25,

2025, our Supreme Court decided Commonwealth v. Smith, -- A.3d --,

2025 WL 2724797 (Pa. 2025). Therein, our Supreme Court found that a

general voir dire question of whether jurors were more likely to believe a child

abuse victim was not warranted “based on the lack of a foundation supporting

the existence of such bias [and, therefore,] the trial court did not abuse its

discretion in refusing this supplemental oral question.” Smith, at *12

(declining to recognize a societal bias in favor of the truthfulness of child

victims of sexual abuse).

Here, upon review of the record, the trial court disclosed that this case

involved a sexual assault. See N.T., 5/30/2023, at 11. The trial court

individually asked potential jurors if they could remain fair and impartial. See

id. at 32, 37, 41, 51, 53, 55, 58, 60, 63, 66, 68, 69, 70-71, 72-73, 76-77,

82, 87, 89, 104, 108, 114, 117, 120, 123, 127, 131, 136, 145, 147, 150, 151,

155, 156, 158, 165, 170, and 172. The trial court identified potential juror

biases and/or prejudices and asked if those biases and/or prejudices could be

put aside upon proper instruction of the court. Those who were eventually

seated on the jury said they could put aside their bias and render a verdict

based solely upon the evidence presented at trial. As such, the trial court did

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not abuse its discretion when it precluded defense counsel from specifically

asking prospective jurors whether anyone was more likely to believe a sexual

assault complainant’s testimony. Accordingly, Appellant’s first issue is without

merit.

In his next issue presented, Appellant argues that the trial court abused

its discretion when it denied his motion to strike Juror No. 35 for cause after

the prospective juror answered, on a printed voir dire form, that he would be

more likely to believe the testimony of a police officer than other witnesses.

Appellant’s Brief at 11-13. Appellant asserts that “Juror number 35 had two

friends who worked in law enforcement and a family member who worked as

a corrections officer,” which showed his bias for the police. Id. at 14.

Appellant also maintains that Juror No. 35 served on three previous juries but

still indicated “a predisposition to believe a law enforcement officer just by

virtue of how that witness was employed.” Id. at 15. As such, Appellant

contends that Juror No. 35 was unable to set aside his bias and that Appellant

did not receive a fair trial as a result. 4 Id.

____________________________________________

4 In relation to this claim of juror bias, Appellant also suggests that he “was

still prejudiced” by testimony and evidence presented at trial. Appellant’s

Brief at 17. More specifically, Appellant claims that the report and trial

testimony of Mary Anders, the public safety officer at Cabrini University who

interviewed the complainant, “was intentionally deceptive and skewed in order

to bolster a case against” Appellant. Id. Appellant claims that Anders’ report

contains numerous “utter fabrication[s]” and “deceptive[] omi[ssions].” Id.

at 17-20. Appellant also alleges that Detective Jagodinski “was called to

testify in order to bolster the Commonwealth’s narrative that [the

complainant’s] allegations were vetted and found to be truthful by law

(Footnote Continued Next Page)

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Ultimately, the trial court denied Appellant’s motion to strike for cause

because it determined that Juror No. 35 could put aside any preconceptions

and render a verdict based upon the evidence. The trial court acknowledged

that Juror No 35 initially answered by stating, on the printed voir dire

questionnaire, that he would more likely believe an officer’s testimony because

of his job, however, “when asked about this during individual voir dire[,] Juror

[No.] 35 stated that he understood and would follow the instruction that the

testimony of a police officer must be given the same weight as that of a

non-police officer.” Trial Court Opinion, 8/13/2024, at 9; see also N.T.,

5/30/2023, at 116. Moreover, the trial court recognized that Juror No. 35

“also confidently stated that he would be able to remain a fair and impartial

juror.” Trial Court Opinion, 8/13/2024, at 9; see also N.T., 5/30/2023, at

117. Here, the voir dire examination revealed Juror No. 35’s fixed opinion

about police officers but, recognizing that prospective jurors are not cultivated

in hermetically sealed environments free of all beliefs, conceptions and views,

the trial court then conducted inquiry into ascertaining whether Juror No. 35

____________________________________________

enforcement such that charges against [Appellant] were warranted” and that

the affidavit of probable cause filed in this matter “was merely a cut-and-paste

job from Anders’ untruthful report.” Id. at 20. Because Appellant never

raised these evidentiary concerns before the trial court and did not raise them

in his subsequent Rule 1925(b) statement, these contentions are waived. See

Pa.R.A.P. 302(a) (“Issues not raised before the trial court are waived and

cannot be raised for the first time on appeal.”); Commonwealth v. Wallace,

289 A.3d 894, 908 (Pa. 2023) (failure to object and raise an issue before the

trial court waives it on appeal); Commonwealth v. Butler, 446, 812 A.2d

631, 634 (Pa. 2002) (any issues not raised in a Rule 1925(b) statement are

waived). As such, we will not consider these additional arguments.

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was competent and capable of rendering a fair, impartial and unbiased verdict.

The trial court determined that Juror No. 35 qualified as a juror because he

stated that he could put aside any biases or prejudices upon the proper

instruction of the court, was willing to eliminate the influence of his scruples,

and would render a verdict according to the evidence. See N.T., 5/30/2023,

at 118 (stating it was not the practice of the court to excuse all jurors for bias

merely because the potential venireperson initially indicates he or she may

believe a law enforcement officer over other witnesses because “[i]f they say

they’d follow [the] instruction[s of the court] – it’s not where they start out,

it’s where they finish.”). Upon review, we discern no abuse of discretion in

determining that Juror No. 35 qualified as a juror and, therefore, it was proper

to deny Appellant’s motion to strike for cause. As such, Appellant’s second

issue does not warrant relief.

Next, Appellant posits that the evidence presented at trial was

insufficient to support his convictions. Appellant’s Brief at 22-29. Appellant

argues that his “convictions must be set aside because the verdict below was

based upon speculation and conjecture [because the] Commonwealth

specifically failed to prove lack of consent.” Id. at 23. Appellant maintains

that, after the incident in question, the complainant immediately “questioned

the clarity of her communication to [Appellant] regarding consent” when “she

told her mother, two residential advisors, and her friend that she was not clear

enough in her communication with” Appellant and that “[s]he told others that

[Appellant] did not understand she was not consenting.” Id. at 25-26.

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Appellant contends that if the complainant “herself knew that she did not

express her lack of consent, then it is nonsensical to assume that [Appellant]

was supposed to read her mind.” Id. at 27. Appellant claims that the

complainant “never said ‘no’ or ‘stop’ during the encounter, she never tried to

leave [Appellant’s] room or end the encounter, and [Appellant] did not use

force, threats, or coercion during the encounter.” Id. at 25. Appellant states

that the complainant suggested meeting at Appellant’s room and then

voluntarily got onto his bed and that the evidence showed that when Appellant

put his arm around the complainant, she moved closer to him and engaged in

consensual kissing. Id. at 24-25. Appellant asserts that while engaged in

consensual kissing, he asked the complainant if she was okay and she said

“yeah.” Id. Appellant acknowledges that when asked if she wanted to take

things further, the complainant replied, “I don’t think so” but she also admitted

at trial that “she continued to participate in the encounter by kissing

[Appellant], taking off some clothing, and requesting that he put on a

condom.” Id. More specifically, Appellant claims that when Appellant inserted

his fingers into the complainant’s vagina “she continued to kiss and make out

with him” and then took her flannel overshirt off. Id. at 25. Thereafter,

Appellant argues that the complainant asked him to put on a condom before

they engaged in vaginal intercourse and Appellant complied. Id. Later,

“[d]uring anal sexual intercourse, [when complainant] expressed pain,

[Appellant] responded by ending his participation in anal intercourse” and

when the entire encounter concluded Appellant “apologized for the sexual

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encounter being so short.” Id. at 25-26. Accordingly, Appellant contends

that “[i]n the absence of some indication to [Appellant] that what he was

allegedly doing was unwarranted, the Commonwealth has wholly failed to

establish the mens rea required to sustain his convictions.” Id. at 26.

Appellant maintains that there was no evidence that he acted intentionally,

knowingly, or recklessly. Id. at 27. Finally, Appellant argues that the

complainant’s mother “warped” the complainant’s “concept of consent” by

telling her that consent “doesn’t exist unless it is ‘enthusiastic’ and that

‘consent is more than just the initial saying yes.’” Id. at 26.

“A challenge to the sufficiency of the evidence presents a question of

law and is subject to plenary review under a de novo standard.”

Commonwealth v. Smith, 234 A.3d 576, 581 (Pa. 2020). We employ the

following standards:

In evaluating a challenge to the sufficiency of the evidence, we

are to view all of the evidence admitted at trial in the light most

favorable to the verdict winner, along with any reasonable

inferences to be drawn therefrom. We must then determine

whether the evidence was sufficient to have permitted the trier of

fact to find that the Commonwealth established each and every

element of the crimes charged beyond a reasonable doubt. The

facts and circumstances presented at trial need not preclude every

possibility of innocence. [We view the evidence presented] in the

light most favorable to the Commonwealth as verdict winner[.]

Commonwealth v. Prince, 719 A.2d 1086, 1088 (Pa. Super. 1998) (internal

citations omitted).

Sexual assault is statutorily defined as follows:

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[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. § 3124.1.

Indecent assault is statutorily defined, in pertinent part, as follows:

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:

(1) the person does so without the complainant's

consent[.]

18 Pa.C.S.A. § 3126.

Section 311 of the Crimes Code (derived from Section 2.11 of the Model

Penal Code), provides that “[t]he consent of the victim to conduct charged to

constitute an offense or to the result thereof is a defense if such consent

negat[es] an element of the offense or precludes the infliction of the harm or

evil sought to be prevented by the law defining the offense.” 18 Pa.C.S.A.

§ 311(a). “The crime of sexual assault requires the Commonwealth to prove

beyond a reasonable doubt that the defendant engaged in sexual intercourse

or deviate sexual intercourse with the complainant, and that the complainant

did not consent.” Prince, 719 A.2d at 1090 (emphasis in original), citing 18

Pa.C.S.A. § 3124.1. Like sexual assault, the crime of indecent assault requires

the Commonwealth to prove beyond a reasonable doubt that the defendant

engaged in indecent assault with the complainant and did so without the

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complainant’s consent. See 18 Pa.C.S.A. § 3126 (emphasis added). “In other

words, lack of consent is an element of the crime[s] charged.” Prince, 719

A.2d at 1090. Accordingly, we have determined that “[w]hile a defendant

may assert consent as a defense, nevertheless, where lack of consent is an

element of the crime, the defendant does not bear the burden of proving

consent: the Commonwealth bears the burden of proving lack of consent,

beyond a reasonable doubt.” Id. (emphasis in original). “Lack of consent is

all that criminalizes the acts at issue, in situations in which the only evidence

often will be the conflicting testimony of the parties who engaged in the acts.”

Id. at 1091. As such, our Court has previously determined that a defendant

is “entitled to a focused [jury instruction] on consent, [] emphasizing

specifically where the burden lay.” Id. More specifically, Pennsylvania

Suggested Standard Jury Instruction (Crim) 8.311B provides:

(1) The consent of the victim is a defense to [] charge[s,

including sexual assault and indecent assault]. Consent is

present if the victim at the time of the alleged crime is

willing [to engage in these activities] and makes his or her

willingness known to the defendant by words or behavior.

* * *

(4) The burden is on the Commonwealth to prove beyond

reasonable doubt that the alleged victim did not give

consent. Thus you cannot convict the defendant unless you are

satisfied beyond a reasonable doubt that [Victim] did not give

consent.

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Pa.S.S.J.I. (Crim.) 8.311(B) (Consent a Defense) (emphasis added). 5

The defense of consent pursuant to 18 Pa.C.S.A. § 311, is “to be viewed

from the perspective of a person of reasonable resolution in the victim's

peculiar situation, considering subjective factors.” Commonwealth v.

Mlinarich, 542 A.2d 1335, 1347 (Pa. 1988) (opinion in support of

affirmance). “Resistance to the sexual assault is not a requisite for sustaining

a conviction for sexual assault.” Commonwealth v. Gonzalez, 109 A.3d

711, 723 (Pa. Super. 2015), citing Commonwealth v. Andrulewicz, 911

A.2d at 162, 165–66 (Pa. Super. 2006). A victim's verbal expression that the

____________________________________________

5 Here, there is no dispute that the trial court properly instructed the jury

regarding consent as follows:

The consent of the victim. The consent of the victim is a defense

to a charge of sexual assault. Consent is present if the victim, at

the time of the alleged crime, is willing to have intercourse and

makes her willingness known to the Defendant by words or

behavior. The consent of the victim is not legally effective and it

is not a defense if the victim is, A, manifestly unable to make a

reasonable judgment as to the nature or the harmfulness of the

conduct charged that constitutes the crime, or B, known to the

Defendant to be unable to make a reasonable judgment as to the

nature or harmfulness of the conduct charged that constitutes the

crime by reason of the victim’s youth, or mental disease or defect,

or intoxication. Additionally, the consent of the victim is not

legally effective and is not a defense if it is induced by force, or

duress, or deception. The burden is on the Commonwealth to

prove beyond a reasonable doubt that the alleged victim did not

give a legally effective consent. Thus, you cannot convict the

Defendant unless you are satisfied beyond a reasonable doubt

that [C.D.] did not give a legally effective consent.

N.T., 6/2/2023, at 92-93. Appellant does not challenge the jury instruction

given.

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defendant’s conduct is unwanted is enough to evidence her lack of consent.

See, i.e., Commonwealth v. Aidoo, 307 A.3d 635 (Pa. Super. 2023)

(non-precedential decision).6 Moreover, this Court has held “that the

uncorroborated testimony of a sexual assault victim, if believed by the trier of

fact, is sufficient to convict a defendant.” Andrulewicz, 911 A.2d at 166,

citing Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa. Super. 2006).

“[I]t is for the fact finder to make credibility determinations, and the finder of

fact may believe all, part, or none of a witness's testimony.” Id. (citation

omitted); see also Gonzalez, 109 A.3d at 724 (“Conflicts between the

testimonies of the victim and [defendant] are for the jury to resolve, and

review of the jury's credibility determinations is not for the trial court to

undertake.”). Further, the factfinder is “free to accept [a victim’s]

characterization of what transpired with [the defendant], particularly [a]

representation that [the defendant] ‘raped’ her, which connotes a lack of

consent to the act committed.” Andrulewicz, 911 A.2d at 166.

Furthermore, this Court has previously determined that because

Sections 3124.1 (sexual and deviate sexual assault) and 3126 (indecent

assault) do not “define the mental state sufficient to establish the defendant's

guilt, the Commonwealth [is] required to prove that [the defendant] acted

intentionally, knowingly, or recklessly with respect to each material element

of the [sexual] offenses.” Commonwealth v. Weaver, 309 A.3d 1024, at

____________________________________________

6 We may cite non-precedential decisions, filed in this Court after May 1,

2019, for their persuasive value. See Pa.R.A.P. 126(b).

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*3 (Pa. Super. 2023) (non-precedential decision) citing 18 Pa.C.S.A. § 302(c);

A.L. v. Pennsylvania State Police, 274 A.3d 1228, 1240 (Pa. 2022)

(indicating that the offense of sexual assault requires at least a finding of

recklessness pursuant to 18 Pa.C.S.A. § 302(c)); Commonwealth v. Carter,

418 A.2d 537, 540-541 (Pa. Super. 1980) (stating that because the indecent

assault statute is silent as to the culpability sufficient to establish the crime,

18 Pa.C.S.A. § 302(c) requires that the Commonwealth establish that the

defendant acted, at a minimum, recklessly with respect to the material

elements of the offense). Recklessness, which requires the lowest level of

proof among the three levels of intent, is defined in the Crimes Code as

follows:

A person acts recklessly with respect to a material element of an

offense when he consciously disregards a substantial and

unjustifiable risk that the material element exists or will result

from his conduct. The risk must be of such a nature and degree

that, considering the nature and intent of the actor's conduct and

the circumstances known to him, its disregard involves a gross

deviation from the standard of conduct that a reasonable person

would observe in the actor's situation.

Weaver, 309 A.3d 1024, at * 3, citing 18 Pa.C.S.A. § 302(b)(3).

Here, on this issue, the trial court determined that “the Commonwealth’s

evidence was sufficient for the jury to find that [] Victim did not consent to

intercourse with [Appellant].” Trial Court Opinion, 8/13/2024, at 13. More

specifically, the trial court recounted:

At trial, the Commonwealth presented [] Victim’s testimony. She

testified that when [Appellant] initially attempted to kiss her, she

‘pulled away’ because that ‘wasn’t what she came over to do.’ []

Victim then testified that while [Appellant] was attempting to kiss

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her and had his hand in her pants, she stated three times ‘I

thought we were watching a movie.’ [] Victim also stated at trial

that when [Appellant] asked her if she ‘wanted to take things

further’ she replied, ‘I don’t think so.’ She also stated that she

did not feel as though she could move, as [Appellant] was on top

of her, and her arms were crossed over her chest. Additionally,

once [] Victim began to bleed and was in pain from vaginal

intercourse, she testified that she expressed this to [Appellant]

and this led him to put his penis in her rectum. This led her to

scream in pain, and [Appellant] put his penis back in her vagina.

[] Victim again stated to [Appellant] that she was bleeding and

needed to take care of it, and [Appellant] got up and got a towel

to put under her[, but then continued having vaginal

intercourse[.]

Id. at 12 (record citations and original brackets omitted).

Upon extensive review of the certified record, specifically the notes of

testimony from trial, as well as applicable law, and viewing the evidence in

the light most favorable to the Commonwealth as verdict winner, we conclude

that the trial court did not err as a matter of law or abuse its discretion in

finding sufficient evidence to support Appellant’s convictions. Victim testified

that Appellant put his arm around her and kissed her three times. After each

time, Victim said, “I thought we were watching a movie.” N.T, 5/31/2023, at

52-55. Victim testified that Appellant then digitally penetrated her vagina

while she remained “frozen… tense, awkward, uncomfortable, [and] rigid.”

Id. at 55. She stated again, however, “I thought we were watching a movie.”

Id. Victim testified that Appellant “raised [her] tank top enough to bite [her]

breast,” asked Victim if she wanted him “to take this further” and she said, “I

don’t think so” without hesitation. Id. at 56. Appellant pulled Victim’s pants

down and took off his shorts. Id. at 57-58. Victim testified that she was

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“kind of in panic mode” and “had said, are you at least going to wear a

condom?” Id. at 59. She testified that she did not feel safe and did not feel

like she could get away. Id. at 61. Appellant inserted his penis into Victim’s

vagina, and she told him twice that she was bleeding and that it hurt. Id. at

63. Victim testified that Appellant “took his penis out of [her] vagina, and he

placed it in [her] rear” without permission or discussion. Id. at 64. Victim

“screamed, because it hurt” and Appellant “took it out and put it back in [her]

vagina.” Id. Victim “then mentioned again that [she] was bleeding, and [she]

needed to go take care of it.” Id. “Within seconds there was a towel

underneath [her], to protect the blood from staining things, and [Appellant]

continued” having sex with her. Id. at 65. Immediately after the encounter,

Victim called her best friend and told her that she thought she “was just

raped.”7 Id. at 68. Victim also told her mother who took her to the emergency

room at the local hospital. Id. at 69. Victim, however, admitted on

cross-examination that she told both campus investigator, Mary Anders, and

Detective Jagodzinski that she was “okay” with the kissing and that at some

point she removed her own flannel shirt. Id. at 107-108, 110-111. Victim

testified that although she initially told her best friend, her residence assistant,

and her mother that she was not sure if she was clear enough with Appellant

____________________________________________

7 Victim’s friend testified similarly at trial. See N.T, 5/31/2023, at 178-179

(“[S]he was crying, and visibly shaking. She had told me [] I think I was

raped.”); id. at 179-180 (“I have never seen her like that. She was really,

really afraid. She was shaking, and she was stuttering over her words, and

she was crying the whole time.”).

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regarding consent, it was because her “first instinct was to blame herself” and

that she later realized that “consent is more than just the initial saying yes.” 8

Id. at 131-134.

Initially, we note that Victim’s testimony, even if uncorroborated, was

sufficient to support Appellant’s convictions. See Andrulewicz. The jury

was free to believe all, some, or none of her testimony, conflicting testimony

was for the jury to resolve, and the trial court was not permitted to usurp the

jury's credibility determinations. See Andrulewicz and Gonzalez.

Moreover, the jury was free to accept Victim’s characterization of what

transpired, which she described to others as rape and which connoted a lack

of consent to the acts committed. See Andrulewicz. Other witnesses

testified that Victim was distraught immediately after the incident and

confirmed that she believed she had been raped. Further, Victim did not have

to physically resist in order to prove her non-consent. See Gonzalez.

Moreover, as discussed above, the trial court properly instructed the

jury about consent. The jury was told that consent was present if Victim, at

the time of the alleged crimes, made her willingness to participate known by

words or behavior. “It is well settled that the jury is presumed to follow the

trial court's instructions.” Commonwealth v. Becher, 293 A.3d 1226, 1240

____________________________________________

8 Victim’s friend testified that Victim “was worried that because she didn't

say no, that it wasn't clear enough to [Appellant], but [Victim] thought

because she had told multiple times that she was in pain, and that she was

bleeding, that that was enough for him to know that she didn't want to do it.”

See N.T, 5/31/2023, at 183.

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(Pa. Super. 2023). Here, Victim testified that she told Appellant she did not

think she wanted to go further than kissing and consistently stated that she

wanted to watch a movie instead. Viewed from the perspective of a person

of reasonable resolution in Victim's peculiar situation, and considering

subjective factors, such testimony was sufficient to show that Appellant’s

conduct was unwanted and that Victim was not willing to engage in sexual

intercourse.9 See Mlinarich and Aidoo. Appellant consciously disregarded

____________________________________________

9 Even if the jury believed that Appellant and Victim engaged in consensual

kissing and that Victim removed an item of her own clothing during the

encounter, we have previously determined that two competent adults may

engage in some intimacy (i.e., kissing and touching) even in instances where

the victim initiates contact, voluntarily goes into the defendant’s bedroom,

and follows some direction by the defendant, but that such actions do “not

undermine the sufficiency of the evidence” to support convictions for sexual

assault and indecent assault. Gonzalez, 109 A.3d at 722. (“Gonzalez's

contention that K.M. initiated sexual intercourse and that he followed her

directions does not undermine the sufficiency of the evidence.”), citing

Andrulewicz, 911 A.2d at 166 (“the court was free to accept [the victim's]

characterization of what transpired with [a]ppellant, particularly her

representation that [a]ppellant ‘raped’ her”); Commonwealth v. Filer, 846

A.2d 139, 141 (Pa. Super. 2004) (victim's testimony that defendant digitally

penetrated her was sufficient evidence for jury to find defendant guilty of

aggravated indecent assault despite defendant's different version of events).

Moreover, Victim asking Appellant to wear a condom is not evidence of

consent. See, i.e., Prince, 719 A.2d at 1088-1089 (“[Victim] realized that

he was going to force her to have sex and became frightened. She was afraid

to scream or do anything because there was nobody there to help her and the

defendant becomes violent when he drinks and/or does not get what he wants.

Fearing AIDS and venereal disease she said to defendant, ‘if you're going to

have sex with me you can use a condom because I don't want to catch no

diseases.’ The defendant allowed her to get a condom [but then continued

assaulting her.]”). As such, for all the foregoing reasons, we reject Appellant’s

contention that Victim consented to the entire incident.

(Footnote Continued Next Page)

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a substantial and unjustifiable risk that Victim was not willing to engage in

consensual sex, a gross deviation from the standard of conduct that a

reasonable person would observe in Appellant’s situation. As such, there was

sufficient evidence that Appellant acted recklessly. See Weaver. Based upon

all of the foregoing, we conclude that the Commonwealth presented sufficient

evidence that Victim did not consent and that Appellant acted recklessly to

support all of Appellant’s convictions. Accordingly, we discern no trial court

abuse of discretion or error of law and Appellant’s third issue on appeal lacks

merit.

Finally, in his last appellate issue, Appellant claims that his convictions

are against the weight of the evidence presented at trial. Appellant’s Brief at

30-37. Appellant argues that the complainant’s testimony, “much of it

provably false, was so inconsistent” and “renders the entirety of the evidence

to be tenuous, vague and uncertain” so as to shock the conscience of the

court. Id. at 30. Appellant asserts that the complainant made conflicting

statements about her sexual orientation and whether she was interested in

Appellant romantically. Id. at 31-32. Appellant also alleges that the

complainant offered “false testimony” and “grossly exaggerated the nature of

vaginal bleeding” after the incident “to bolster her claim that the encounter

____________________________________________

Furthermore, at no time did Victim say she consented. Instead, as Appellant

acknowledges, Victim consistently stated that Appellant may not have

understood, or did not get the message, that he did not have consent. It was

for the jury to decide whether Victim was not willing to engage in sexual

intercourse and whether Appellant recklessly and consciously disregarded the

risk.

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was non-consensual.” Id. at 33-34. Appellant posits, however, that “the

vaginal bleeding was a result of her medical condition, pelvic floor

dysfunction,” that no witnesses saw blood on the complainant or her clothes

immediately after the incident, complainant was not bleeding at the time of

her medical exam, and that “during the [c]omplainant’s exam no internal or

external vaginal injuries were found” despite the complainant’s claim that

blood was “dripping down her legs” and that her clothes were “soaked” in

blood immediately following the incident. Id. Appellant further notes that

although the complainant testified that she could not physically walk after the

incident, “surveillance video showed the [c]omplainant leaving [Appellant’s]

room after the encounter, walking normally.” Id. at 35. Finally, Appellant

argues that after the incident, the complainant made three false reports to

the police alleging that Appellant was following and stalking her and had

affixed tracking devices to her belongings. Id. at 35-36. In sum, Appellant

suggests that the complainant’s testimony was “internally inconsistent” and

argues she “couldn’t get any of her stories straight, [and, therefore,] it was

impossible for the jury to do so.” Id. at 37.

Our well-settled standard of review for a challenge to the weight of the

evidence is as follows:

[First, we recognize that a] challenge [to the weight of the

evidence] concedes that there is sufficient evidence to sustain the

verdict but contends, nevertheless, that the verdict is against the

weight of the evidence. Moreover,

A verdict is against the weight of the evidence only when

the jury's verdict is so contrary to the evidence as to shock

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one's sense of justice. It is well established that a weight of

the evidence claim is addressed to the discretion of the trial

court, and a new trial should not be granted because of a

mere conflict in the testimony or because the judge on the

same facts would have arrived at a different conclusion.

Rather, the role of the trial court is to determine whether,

notwithstanding all the evidence, certain facts are so clearly

of greater weight that to ignore them, or to give them equal

weight with all the facts, is to deny justice.

In reviewing a challenge to the weight of the evidence, the

function of an appellate court is to review the trial court's

exercise of discretion based upon a review of the record,

rather than to consider de novo the underlying question of

the weight of the evidence. Appellate review is limited to

whether the trial judge's discretion was properly exercised,

and relief will only be granted where the facts and inferences

of record disclose an abuse of discretion.

Because the trial judge has had the opportunity to hear and see

the evidence presented, an appellate court will give the gravest

consideration to the findings and reasons advanced by the trial

judge when reviewing a trial court's determination that the verdict

is against the weight of the evidence.

Commonwealth v. Rodriguez, 340 A.3d 334, 349 (Pa. Super. 2025)

(internal citations and quotations omitted).

In this case, the trial court did not believe that the jury’s verdict was so

contrary to the evidence presented so as to shock its sense of justice. See

Trial Court Opinion, 8/13/2024, at 13-15. As the trial court recounted, at trial

the Commonwealth presented the testimony of Victim, her best friend, the

SANE nurse at the emergency room, Cabrini University’s public safety

investigator, and the police detective assigned to the case; Appellant

presented his own testimony and the testimony of three character witnesses.

Id. at 14. The trial court ultimately concluded:

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The jury had the sole discretion to assess the credibility of these

witnesses. The jury was able to listen to these witnesses testify

both during direct and cross-examination and observe their

demeanor. The jury was able to consider all evidence presented

when deliberating on the verdict including but not limited to: [a]

video of Victim leaving [Appellant’s] room, [a] transcript of [the]

interview with Mary Anders[, Cabrini University’s public safety

investigator, a] transcript of [Victim’s] interview with Detective

Jagodzinski, text messages, [an] electronic medical report, notice

of the allegations, [a] transcript of [Mary Ander’s] interview with

[Appellant], Mary Anders’ report with highlights, [an] email from

[Appellant] to Mary Anders, [an] incident report, supplemental

incident [and] medical reports, [a] video interview of [Appellant],

[] the search warrant, and [a] video of [Victim]. Based on

evidence and testimony presented at trial, the jury found

[Appellant] guilty. [As such, the trial court] denied [Appellant’s]

motion for a new trial based on the weight of the evidence.

Id. at 14-15 (superfluous capitalization and record citations omitted).

Based upon our standard of review and extensive review of the record,

we discern no abuse of discretion by the trial court in denying Appellant’s

weight claim. As previously stated, credibility determinations and the

resolution of conflicting evidence are exclusively determined by the jury. The

jury decided the facts and were entitled to believe all, part, or none of the

evidence. This Court cannot substitute its judgment for the jury’s decision

when supported by the record. On this record, as discussed at length above,

we agree with the trial court that there was ample evidence to support

Appellant’s convictions and that the jury’s verdict does not shock the

conscience. Hence, Appellant is not entitled to relief regarding his claim

challenging the weight of the evidence presented at trial.

Judgment of sentence affirmed.

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Date: 4/6/2026

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