Com. v. Howard, X.

• Court: Superior Court of Pennsylvania
• Decided: March 19, 2025
• Docket: 300 EDA 2024
• Status: Unpublished

Opinion

J-S02023-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : XAVIER HOWARD : : Appellant : No. 300 EDA 2024

Appeal from the Judgment of Sentence Entered December 18, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000464-2020

BEFORE: LAZARUS, P.J., DUBOW, J., and McLAUGHLIN, J.

MEMORANDUM BY DUBOW, J.: FILED MARCH 19, 2025

Appellant, Xavier Howard, appeals from the December 18, 2023,

judgment of sentence entered in the Philadelphia County Court of Common

pleas following his conviction by a jury of Rape by Forcible Compulsion,

Strangulation, Unlawful Restraint, Terroristic Threats, and Simple Assault. 1

Appellant challenges the weight of the evidence. After careful review, we

affirm.

The relevant facts and procedural history are as follows. On December

8, 2019, Appellant visited the Victim at her home. Appellant and the Victim

had been acquainted for approximately two years through the Victim’s father,

who had hired Appellant to help complete repairs at the Victim’s residence.

Over time, Appellant and the Victim became friends and, on one occasion, the ____________________________________________

1 18 Pa.C.S §§ 3121(a)(1), 2718(a)(1), 2902(a)(1), 2706(a)(1), and

2701(a), respectively. J-S02023-25

two engaged in consensual sex. The Victim immediately told Appellant that

the encounter between them had been a mistake and would not be repeated.

On the evening of the incident, Appellant was at the Victim’s home.

When the Victim asked Appellant to leave her home, Appellant refused and

proceeded to prevent the Victim from leaving the residence herself. A fistfight

ensued, resulting in Appellant overpowering the Victim, choking her, and

knocking her over a sofa. The Victim fell to the floor, landing on her stomach.

Appellant then placed his knees on the Victim’s back and continued to choke

her from behind by pulling her chin up with one arm and putting his other arm

around her throat. Appellant then said, “You’re going to love me. Why are

you forcing me to make you love me.” N.T. Trial, 11/15/22, at 56-57. The

Victim heard Appellant unbuckle his belt, and she felt his penis enter her

vagina. While Appellant raped the Victim, he continued to keep his hands

around her neck, preventing her from breathing. Upon ejaculating, Appellant

ended the assault. The Victim then retreated to a second-floor bathroom and

showered. She suffered a black right eye, a large cut to her inner lip, and

scratches to her neck from the assault.

Later that day, Appellant called her mother and father crying, unable to

convey what had occurred. The Victim’s father called the police and went to

the Victim’s residence. When he arrived, he observed the Victim sitting on

the couch, frantic and crying. He noticed marks and a bruise around her

mouth and a ring around her eye. The Victim then told her father that

Appellant had raped her.

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Police Officers Lauren Bielski and Diaz2 responded to the Victim’s

residence. Officer Bielski spoke with the Victim who reported having been

raped and observed injuries to the Victim’s neck and lip. The Victim spoke

with a raspy voice and was visibly upset.

The officers transported the Victim to the Special Victims Unit where

Ramona Vellucci, a forensic nurse employed by the Philadelphia Sexual Assault

Response Center, interviewed and examined the Victim, collected her clothing,

and administered a rape kit. Subsequently, Ms. Vellucci prepared a report of

the interview and examination verifying that Appellant had subjected the

Victim to hitting, grabbing, punching, choking, and verbal abuse during the

attack. The Victim also reported to Ms. Vellucci that she had lost

consciousness and had urinated on herself, and that Appellant had vaginally

penetrated her and attempted anal penetration during the attack. According

to the paperwork prepared by Ms. Velucci, the Victim did not report any

injuries to her eyes, hands, or vagina.

Police arrested Appellant on December 30, 2019, and the

Commonwealth charged him with, inter alia, the above crimes. DNA

subsequently collected from Appellant returned a “high and significant” match

to DNA retrieved from the Victim. Id. at 24-26.

Appellant proceeded to a two-day jury trial on November 15, 2022. The

Commonwealth presented the testimony of the Victim, her father, Officer

____________________________________________

2 Officer Diaz’s first name does not appear in the record.

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Bielski, Allison Denman, the clinical director of the Philadelphia Sexual Assault

Response Center, and Philadelphia Police Detective Maureen Berner, each of

whom testified in accordance with the above facts. Detective Berner also

testified that she took the Victim’s statement at the Special Victims Unit,

photographed injuries to the Victim’s neck and lip, but did not notice any

injuries on the Victim’s eyes or hands. The jury also viewed Officer Bielski’s

body worn camera footage which recorded her interaction with the Victim at

the Victim’s home.

Appellant did not testify or present any other evidence. His defense

counsel argued that he and the Victim had engaged in consensual sex, after

which the Victim fabricated the rape to retaliate against Appellant for refusing

to break up with his girlfriend to become the Victim’s romantic partner. His

counsel attempted to impugn the Victim’s credibility by pointing out numerous

alleged inconsistencies in the Victim’s reports of the incident and emphasizing

that the Commonwealth’s physical evidence showed, inter alia, no sign of

defensive wounds and no injuries to the Victim’s eyes as she claimed.

The jury did not credit Appellant’s defense theory and, following its

deliberation, convicted Appellant of the above charges. On December 18,

2023, the court sentenced Appellant to an aggregate term of 7 to 14 years of

incarceration followed by 3 years of probation.

On December 28, 2023, Appellant filed a post-sentence motion in which

he challenged, inter alia, the weight of the evidence. On January 2, 2024, the

trial court denied the motion.

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This timely appeal followed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

Appellant raises the following issue on appeal:

Did the lower court err and abuse its discretion when it denied [Appellant’s] post-sentence motion for a new trial where the verdict was so against the weight of the evidence as to shock the conscience?

Appellant’s Brief at 2.

When considering challenges to the weight of the evidence, we apply

the following precepts. “The weight of the evidence is exclusively for the

finder of fact, who is free to believe all, none[,] or some of the evidence and

to determine the credibility of the witnesses.” Commonwealth v. Talbert,

129 A.3d 536, 545 (Pa. Super. 2015) (citation omitted). “Resolving

contradictory testimony and questions of credibility are matters for the fact[-

]finder.” Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa. Super. 2000).

It is well-settled that we cannot substitute our judgment for that of the trier

of fact. Talbert, 129 A.3d at 546.

Moreover, appellate review of a weight claim is a review of the trial

court’s exercise of discretion in denying the weight challenge raised in the

post-sentence motion; this court does not review the underlying question of

whether the verdict is against the weight of the evidence. Id. at 545-46.

“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

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determination that the verdict is [or is not] against the weight of the

evidence.” Id. at 546 (citation omitted). “One of the least assailable reasons

for granting or denying a new trial is the lower court’s conviction that the

verdict was or was not against the weight of the evidence and that a new trial

should be granted in the interest of justice.” Id. (citation omitted).

Furthermore, “[i]n order for a defendant to prevail on a challenge to the

weight of the evidence, the evidence must be so tenuous, vague[,] and

uncertain that the verdict shocks the conscience of the court.” Id. (citation

and internal quotation marks omitted). As our Supreme Court has made clear,

reversal is only appropriate “where the facts and inferences disclose a palpable

abuse of discretion[.]” Commonwealth v. Morales, 91 A.3d 80, 91 (Pa.

2014) (citations and emphasis omitted).

“[A] true weight of the evidence challenge concedes that sufficient

evidence exists to sustain the verdict but questions which evidence is to be

believed.” Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. Super.

2014) (citation omitted). For that reason, the trial court need not view the

evidence in the light most favorable to the verdict winner and may instead

use its discretion in concluding whether the verdict was against the weight of

the evidence. Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

Critically, “[t]he testimony of a sexual assault victim standing alone is

sufficient weight to support a conviction.” Commonwealth v. Strutt, 624

A.2d 162, 164 (Pa. Super. 1993).

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In support of his claim that his convictions are against the weight of the

evidence, Appellant claims that the Victim’s testimony was inconsistent and

contrary to the physical evidence. Appellant’s Brief at 12-22. To this end,

Appellant highlights the alleged inconsistencies in the Victim’s statements to

her family and to investigators, the lack of physical evidence to support her

claims, and his proffered theory that the Victim had a motive to fabricate the

rape accusation. Id. at 13-18. He then asserts that the trial court’s “three

sentences of analysis” justifying its denial of Appellant’s post-sentence motion

are “either legally inadequate or else unsupported by the record.” Id. at 11,

19-22.

Here, the jury sitting as factfinder found credible the Victim’s testimony,

which the totality of the evidence, including the testimony of her father and

police investigators, as well as photographic and other physical evidence,

largely corroborated. To the extent that there were inconsistencies in the

evidence, the jury resolved those inconsistencies as is its mandate. Appellant

essentially asks us to reweigh the evidence, and adopt his defense theory,

and conclude that the Victim fabricated her account of the incident to retaliate

against Appellant. This we cannot and will not do.

Our review of the record shows that the evidence is not so tenuous,

vague, or uncertain, and the verdict was not so contrary to the weight of the

evidence as to shock the court’s conscience. Accordingly, we discern no abuse

of discretion in the trial court’s denial of Appellant’s weight of the evidence

claim.

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Judgment of sentence affirmed.

Date: 3/19/2025

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