Com. v. Castro, C., Jr. ( 2015 )

J-S53025-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CARLOS R. CASTRO, JR.
Appellant No. 425 MDA 2015
Appeal from the Judgment of Sentence April 12, 2006
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0000201-2005
BEFORE: DONOHUE, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED OCTOBER 27, 2015
Carlos R. Castro, Jr., appeals, nunc pro tunc, from the judgment of
sentence imposed April 12, 2006, in the Lycoming County Court of Common
Pleas. The trial court imposed an aggregate sentence of 60 months to 10
years’ imprisonment, followed by a 20-year probationary term, after Castro
was convicted, by a jury, of sexual assault, attempted involuntary deviate
sexual intercourse (“IDSI”), and indecent assault.1 On appeal, Castro
challenges the sufficiency of the evidence supporting his convictions,
including his classification as a sexually violent predator (“SVP”) under the
____________________________________________
1
18 Pa.C.S. §§ 3124.1, 901, and 3126(a)(1), respectively.
J-S53025-15
former Megan’s Law,2 and the discretionary aspects of his sentence. For the
reasons that follow, we affirm.
The trial testimony, which led to Castro’s convictions, is aptly
summarized by the trial court as follows:
The facts of this case arise from the events that transpired
in the early morning hours of January 10, 2005. On that date,
[Castro] and the victim found themselves, along with several
other acquaintances, spending the night at the Park Avenue
home of a mutual friend. On this particular evening, the victim
retired to the couch in the living room; two other people slept on
the floor along side (sic) the couch [where] she slept. [Castro]
shared a first floor bedroom with his girlfriend and another
couple.
Sometime around five o’clock in the morning on January
10, 2005, the victim was awakened by [Castro] on top of her.
At the June 23-24, 200[5] trial in this matter, the victim testified
that after inquiring of [Castro] what he was doing, he said,
“please [N.B.], I’m horny.” According to the victim, [Castro]
then proceeded, without her consent, to move her onto her side,
slide behind her, grab her breast and pull her pants down. The
victim testified that she told [Castro] “no” several times;
however, after successfully preventing him from penetrating her
anally by maneuvering her body, he penetrated her vaginally.
After forcefully penetrating her several times, [Castro]
jumped off the couch after a noise or movement in the home
startled him. The victim then pulled her pants up, retrieved a
telephone, and went into the laundry room to call her boyfriend;
[Castro], she testified, was in the kitchen at this time. Shortly
after she entered the laundry room, [Castro] entered and
____________________________________________
2
At the time of his conviction, Castro was subject to the registration
requirements of Megan’s Law III. See 42 Pa.C.S. §§ 9791-9799.8;
Commonwealth v. Hitner, 910 A.2d 721, 723 n. (Pa. Super. 2006), appeal
denied, 926 A.2d 441 (Pa. 2007). Effective December 20, 2012, Megan’s
Law was repealed and replaced by the Sexual Offenders Registration and
Notification Act (“SORNA”), 42 Pa.C.S. §§ 9799.10-9799.14.
-2-
J-S53025-15
accosted the victim inquiring as to whether or not she intended
to keep the incident between the two of them; the victim
assured [Castro] she would keep the incident between them.
Soon after this encounter, [Castro] retreated from the laundry
room and the victim was able to speak with her boyfriend who
immediately picked her up in a nearby parking lot. After briefly
discussing what transpired that evening with her boyfriend, he
took her to the hospital where a rape exam was performed and
the victim made a formal complaint to the police department.
On January 14, 2005, the Williamsport Police Department
arrested [Castro] on allegations of rape, sexual assault, indecent
assault, and attempted [IDSI]. [Castro] contends that the
intimate contact that occurred on January 10, 2005 was the
second of two such consensual encounters between the parties.
Trial Court Opinion, 7/17/2006, at 1-3.
As a result of the incident, Castro was charged with rape,3 sexual
assault, attempted IDSI and indecent assault. His case proceeded to jury
trial in June of 2005. On June 24, 2005, the jury returned a verdict of not
guilty on the charge of rape, but guilty on the remaining charges.
On July 7, 2005, Castro filed a post-verdict motion for judgment of
acquittal, contending: (1) he could not have been convicted of sexual
assault and attempted IDSI when the jury acquitted him of rape; and (2) the
Commonwealth presented no evidence of force or threat of force to support
his conviction of attempted IDSI. See Motion for Judgment of Acquittal,
7/7/2005. The trial court never entered a ruling on Castro’s motion.4
____________________________________________
3
See 18 Pa.C.S. § 3121(a).
4
In its opinion, the trial court states the motion was denied by operation of
law. See Pa.R.Crim. 720(B)(3)(a).
-3-
J-S53025-15
On July 18, 2005, the court ordered Castro to undergo a Megan’s Law
assessment by the Sexual Offender Assessment Board (“SOAB”) to
determine if he met the criteria for classification as an SVP. 5 After several
continuances, on May 5, 2006, the trial court conducted a combined Megan’s
Law/sentencing hearing. Based upon the testimony of the SOAB assessor,
the court determined Castro met the criteria for classification as an SVP.
Additionally, that same day, the court sentenced Castro to a term of 90
months to 10 years’ imprisonment on the charge of sexual assault, a
concurrent 12 to 24 months’ imprisonment on the charge of indecent
assault, and a consecutive term of 20 years’ probation for the charge of
attempted IDSI. Castro filed a timely notice of appeal on May 11, 2006.
Thereafter, on May 15, 2006, the trial court amended its sentencing order to
reflect Castro’s sentence on the count of sexual assault should have been 60
months to 10 years’ imprisonment.6 See Order, 5/15/2006.
____________________________________________
5
See 42 Pa.C.S. § 9795.4(a) (“After conviction but before sentencing, a
court shall order an individual convicted of an offense specified in section
9795.1 (relating to registration) to be assessed by the board.”).
6
Although we recognize the trial court modified Castro’s sentence after a
notice of appeal had been filed, our Supreme Court has held that “under
limited circumstances, even where the court would normally be divested of
jurisdiction, a court may have the power to correct patent and obvious
mistakes.” Commonwealth v. Klein, 781 A.2d 1133, 1135 (Pa. 2001).
Here, Castro’s original sentence for the sexual assault conviction, 90 months
to 120 months’ imprisonment, clearly violated the provision of the Judicial
Code that mandates “a minimum sentence of confinement … shall not
exceed one-half of the maximum sentence imposed.” 42 Pa.C.S.
(Footnote Continued Next Page)
-4-
J-S53025-15
On November 17, 2006, this Court dismissed Castro’s direct appeal
when he failed to file an appellate brief. Less than one year later, on
October 29, 2007, Castro filed a timely, pro se PCRA petition seeking
reinstatement of his direct appeal rights. Although counsel was promptly
appointed and a conference was scheduled, no further action was taken on
Castro’s petition until January 13, 2015, when the trial court appointed the
Public Defender’s Office to represent Castro.7 Thereafter, on February 6,
2015, the court entered an order, by agreement of the parties, granting
Castro’s PCRA petition and reinstating his direct appeal rights, nunc pro
tunc. This timely appeal follows.8
In his first issue on appeal, Castro argues the evidence was insufficient
to support his convictions.
_______________________
(Footnote Continued)
9756(b)(1). Accordingly, we conclude the trial court had the authority to
correct the patent mistake in Castro’s original sentence.
7
The record contains no explanation for the seven year delay after Castro
filed a timely PCRA petition based on counsel’s per se ineffectiveness for
failing to file a brief on appeal. Indeed, the trial court does not even
mention the delay in its Pa.R.A.P. 1925(a) opinion, and the Commonwealth
has neglected to file a brief in this appeal. We find the cavalier attitude with
which both the trial court and the Commonwealth have apparently
considered this appeal, disconcerting at the very least.
8
On March 6, 2015, the trial court ordered Castro to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Castro
complied with the court’s directive in a timely manner. Thereafter, the trial
court filed an opinion pursuant to Pa.R.A.P. 1925(a), in which it relied on its
prior opinion filed on July 17, 2006.
-5-
J-S53025-15
In reviewing the sufficiency of the evidence, we consider
whether the evidence presented at trial, and all reasonable
inferences drawn therefrom, viewed in a light most favorable to
the Commonwealth as the verdict winner, support the [fact
finder’s] beyond a reasonable doubt. Whether sufficient
evidence exists to support the verdict is a question of law; thus,
our standard of review is de novo and our scope of review is
plenary.
Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 2014) (citations
omitted), cert. denied, 135 S. Ct. 1400 (U.S. 2015). Furthermore, “the trier
of fact, while passing upon the credibility of witnesses and the weight of the
evidence, is free to believe all, part, or none of the evidence[,]” and an
appellate court will not substitute its credibility determination for that of the
jury. Commonwealth v. Cousar, 928 A.2d 1025, 1033 (Pa. 2007), cert.
denied, 553 U.S. 1035 (2008).
Castro focuses his sufficiency challenge on the jury’s acquittal of the
rape charge. He argues: “[S]ince all the charges against him stem from
one brief incident involving one victim, and [he] was acquitted of the lead
charge of rape which shares specific elements with the lesser included
offenses, it is logically inconsistent that [he] was convicted of the lesser
included offenses.” Castro’s Brief at 14. Essentially, Castro contends the
lesser crimes should have merged with the crime of rape, so that the jury’s
guilty verdicts on the charges of sexual assault, indecent assault, and
attempted IDSI, are logically inconsistent with its acquittal on the crime of
rape.
-6-
J-S53025-15
First, we note Castro’s reliance on Commonwealth v. Williams, 496
A.2d 31 (Pa. Super. 1985) (en banc), for merger principals is misplaced
because Williams involved the merger of offenses for sentencing
purposes. See id. at 34 (“This case was certified to the Court en banc to
address problems arising under the doctrine of merger of offenses for
sentencing.”).
Second, to the extent Castro argues his convictions are logically
inconsistent, we agree with the conclusion of the trial court that the jury’s
verdicts were not inconsistent. See Trial Court Opinion, 7/17/2006, at 10.
Castro was convicted of attempted IDSI, sexual assault and indecent
assault. A defendant is guilty of attempted IDSI if, with the intent to commit
IDSI, that is, the intent to forcibly compel the complainant to engage in
deviate sexual intercourse (here, anal penetration), “he does any act which
constitutes a substantial step toward the commission of that crime.” 18
Pa.C.S. § 901. See also 18 Pa.C.S. §§ 3101, 3123(a)(1). A person is guilty
of sexual assault if he “engages in sexual intercourse … with a complainant
without the complainant’s consent.” 18 Pa.C.S. § 3124.1. Further, to
secure a conviction for indecent assault, the Commonwealth must prove the
defendant, without the complainant’s consent, had indecent contact with the
complainant, which involves “[a]ny touching of the sexual or other intimate
parts of the [complainant] for the purpose of arousing or gratifying sexual
desire, in any person.” 18 Pa.C.S. §§ 3101, 3126. Conversely, a conviction
-7-
J-S53025-15
of rape requires proof that the defendant “engage[d] in sexual intercourse
with a complainant … [b]y forcible compulsion.” 18 Pa.C.S. § 3121(a)(1).
The trial court analyzed the relationship between the crimes and the
evidence produced at trial as follows:
The apparent similarities between the elements of rape,
IDSI, and sexual assault are readily apparent to the Court;
however, each of these crimes encompasses distinct and unique
elements. For example, although both IDSI and rape require the
same element of force, the crime of rape requires the element of
forced sexual intercourse whereas the crime of IDSI requires
forced deviate sexual intercourse; therefore, one can be found
guilty of IDSI and not guilty of rape and, where the facts of the
case show that the defendant forcibly engaged in only vaginal
intercourse, the defendant can be found guilty of rape and not
guilty of IDSI. In addition, although both rape and sexual
assault require the same element of sexual intercourse, the
seemingly fine line distinction between “forcible compulsion” and
“lack of consent” distinguishes the crimes. The Superior Court of
Pennsylvania explained this distinction as follows:
[w]e observe that the term “forcible compulsion,” as used
in section 3123 (pertaining to [IDSI], directly imputes the
perpetrator’s conduct whereas the absence of the
complainant’s consent in the language of § 3124.1
(pertaining to sexual assault) requires the fact finder to
consider the complainant’s conduct. Although facts may
be present in a case that would suggest a finding of
forcible compulsion and the absence of consent, the want
of consent is not necessarily included in a finding that a
defendant forcibly compelled the complainant to engage in
sexual intercourse.
Commonwealth v. Buffington, 2001 PA Super 309, P10, 786
A.2d 271, 274 (Pa. Super. Ct. 2001) (emphasis added)[, aff'd,
828 A.2d 1024 (Pa. 2003)].
The facts presented at the trial in this matter (i.e. that
[Castro] forcibly attempted to penetrate the victim anally and
did penetrate her vaginally without her consent) were directly in
line with the jury’s verdict; therefore, the Court respectfully
-8-
J-S53025-15
disagrees with [Castro’s] assertion that the jury’s verdict was
logically inconsistent.
Trial Court Opinion, 7/17/2006, at 9-10.
We agree with the court’s well-reasoned analysis. Based upon the
testimony of the victim at trial, the jury could have determined that Castro
(1) attempted to commit IDSI when he forcibly engaged in anal intercourse
with the victim;9 (2) committed indecent assault when he grabbed the
victim’s breast;10 and (3) committed a sexual assault when he engaged in
vaginal intercourse with the victim without her consent.11 However, the
jury could have also concluded that Castro did not use force to engage in
vaginal intercourse. See N.T., 6/23/2005-6/24/2005, at 18-20 (testimony
of victim explaining she did not struggle, yell or cry out, but told Castro to
stop “[a]bout four or five” times). Therefore, because we conclude the
jury’s verdicts were not inconsistent, Castro’s first issue fails.12
Next, Castro challenges the sufficiency of the evidence supporting his
classification as an SVP.
____________________________________________
9
See N.T., 6/23/2005-6/24/2005, at 17-18.
10
See id. at 17.
11
See id. at 18.
12
In any event, we note that even if the jury’s verdicts were inconsistent,
“inconsistent verdicts are not grounds for relief.” Commonwealth v.
Stokes, 38 A.3d 846, 855 (Pa. Super. 2011) (citations omitted).
-9-
J-S53025-15
In order to affirm an SVP designation, we, as a reviewing court,
must be able to conclude that the fact-finder found clear and
convincing evidence that the individual is a sexually violent
predator. As with any sufficiency of the evidence claim, we view
all evidence and reasonable inferences therefrom in the light
most favorable to the Commonwealth. We will reverse a trial
court’s determination of SVP status only if the Commonwealth
has not presented clear and convincing evidence that each
element of the statute has been satisfied.
The standard of proof governing the determination of SVP
status, i.e., “clear and convincing evidence,” has been described
as an “intermediate” test, which is more exacting than a
preponderance of the evidence test, but less exacting than proof
beyond a reasonable doubt.
***
The clear and convincing standard requires evidence that is “so
clear, direct, weighty, and convincing as to enable the [trier of
fact] to come to a clear conviction, without hesitancy, of the
truth of the precise facts [in] issue.”
Commonwealth v. Fuentes, 991 A.2d 935, 942 (Pa. Super. 2010) (en
banc), appeal denied, 12 A.3d 370 (Pa. 2010).
At the time Castro was convicted, he was subject to the assessment
provisions of the former Megan’s Law,13 which stated, in relevant part:
____________________________________________
13
We recognize that in Commonwealth v. Neiman, 84 A.3d 603 (Pa.
2013), the Supreme Court held Act 152 of 2004, which, inter alia, modified
and replaced the then-existing version of Megan’s Law, violated the single
subject rule. Id. at 605. The Court struck the Act in its entirety, but stayed
its decision for 90 days “in order to provide a reasonable amount of time for
the General Assembly to consider appropriate remedial measures, or to
allow for a smooth transition period.” Id. at 616. Thereafter, the
Legislature amended the statute to address the decision in Neiman. See 42
Pa.C.S. § 9799.11(b)(3). The amended act applies to, inter alia, “[a]n
individual who … was required to register with the Pennsylvania State Police
pursuant to this subchapter prior to December 20, 2012, and who had not
(Footnote Continued Next Page)
- 10 -
J-S53025-15
After conviction but before sentencing, a court shall order an
individual convicted of an offense specified in section 9795.1
(relating to registration) to be assessed by the board. The order
for an assessment shall be sent to the administrative officer of
the board within ten days of the date of conviction.
42 Pa.C.S. § 9795.4(a).14 After the court entered such an order, a member
of the Sexual Offenders’ Assessment Board (“SOAB”) was assigned to
conduct an assessment to determine if the individual should be classified as
a sexually violent predator. 42 Pa.C.S. § 9795.4(b).15 The Act defined a
“sexually violent predator” as:
A person who has been convicted of a sexually violent offense as
set forth in section 9795.1 (relating to registration) and who is
determined to be a sexually violent predator under section
9795.4 (relating to assessments) due to a mental abnormality or
personality disorder that makes the person likely to engage in
predatory sexually violent offenses. …
42 Pa.C.S. § 9792.16 Furthermore,
“predatory” conduct, which is indispensable to the designation, is
defined as an “act directed at a stranger or at a person with
whom a relationship has been initiated, established, maintained
_______________________
(Footnote Continued)
fulfilled the individual’s period of registration as of December 20, 2012[.]”
42 Pa.C.S. § 9799.13(3)(i). Further, the amended act defined a “sexually
violent predator” as, inter alia, “an individual determined to be a sexually
violent predator under section 9795.4 (relating to assessments) prior to the
effective date of this subchapter[.]” 42 Pa.C.S. §§ 9799.12. Accordingly,
we find no prohibition in evaluating the sufficiency of Castro’s SVP
classification under the statute existing at the time of his assessment in
2006.
14
See also 42 Pa.C.S. § 9799.24(a).
15
See also 42 Pa.C.S. § 9799.24(b).
16
See also 42 Pa.C.S. § 9799.12.
- 11 -
J-S53025-15
or promoted, in whole or in part, in order to facilitate or support
victimization.” Meals, 590 Pa. at 120, 912 A.2d at 218–19
(quoting 42 Pa.C.S.A. § 9792).
Fuentes, supra, 991 A.2d at 943.
The Act also provided the following non-exclusive list of factors for an
assessor to consider in determining whether an offender should be classified
as a sexually violent offender, including: (1) the facts of the offense, such
as (a) whether there were multiple victims, (b) whether the offender
“exceeded the means necessary to achieve the offense[,]” (c) the type of
sexual conduct involved, (d) the age and mental capacity of the victim, and
(e) whether the offender displayed “unusual cruelty” during the crime; (2)
the offender’s prior criminal history; (3) the offender’s characteristics, such
as his or her age, use of illegal drugs, mental illness, or other behavioral
characteristics that contributed to the conduct; and (4) any additional
factors “reasonably related to the risk of re-offense.” 42 Pa.C.S.
§9795.4(b)(1)-(4).17
In the present case, Castro’s assessment was conducted by licensed
psychologist C. Townsend Velkoff, M.S. Velkoff concluded that Castro met
the definition for classification as an SVP. Specifically, Velkoff testified
Castro suffers from Antisocial Personality Disorder, which makes him
“opportunistic.” N.T., 5/5/2006, at 14. He explained, “an individual with
____________________________________________
17
See also 42 Pa.C.S. § 9799.24(b).
- 12 -
J-S53025-15
this personality disorder if he has an opportunity to assault someone
sexually [he] may do so because that’s what he feels like doing.” Id.
Further, Velkoff stated he believed Castro engaged in predatory behavior:
Without discussion or any prior intimate interaction with the
victim, [Castro] climbed on top of her while she was sleeping on
the couch in the apartment where they were both staying, in
other words, he initiated this intimate contact without any basis
for it, just went ahead and did that. [Castro] forced the victim’s
pants and underpants down to her knees and began attempting
to penetrate her anally with his penis. [Castro] ignored the
victim’s demands for him to stop. [Castro] got up quickly when
someone else began moving around the apartment, which
implies that [he] was aware he was acting inappropriately.
[Castro] accosted the victim again when she went into the
laundry area and tried to engage her again in sexual activity
again.[18] [Castro] told the victim not to tell anyone what he did
to her.
Id. at 15-16. Velkoff also testified that an individual who has antisocial
personality disorder and has been convicted of a sexual offense would be
likely to reoffend. See id. at 23-24.
The trial court found Velkoff’s testimony credible. The court
emphasized that Castro’s “extensive criminal history is a clear indication of
his refusal to adhere to social norms and obey the law.” Trial Court Opinion,
____________________________________________
18
We note that while the probable cause affidavit attached to Castro’s
criminal complaint indicated Castro tried to initiate further sexual contact
with the victim in the laundry room, the victim did not testify to that fact at
trial. See Criminal Complaint, Affidavit of Probable Cause, 1/12/2005; N.T.,
6/23/2005-6/24/2005, at 26, 28 (victim testified Castro was in the laundry
room with her for only “about 30 seconds to 45 seconds” and he asked her if
she was okay, and “if this was going to stay between us[.]”).
- 13 -
J-S53025-15
7/17/2006, at 7. Moreover, while the court noted the fact Castro had no
prior convictions for sexual crimes “is a mitigating factor against []
classification[,]” it ultimately determined the fact was “not controlling.” Id.
Here, Castro argues the court erred in finding he met the criteria for
classification as an SVP. Castro first emphasizes that, before preparing his
assessment, Velkoff failed to “speak to law enforcement involved, did not
contact [the victim], did not talk to [Castro], and relied upon information
that was not presented at trial regarding sexual contact between [Castro and
the victim].”19 Castro’s Brief at 18. Moreover, Castro asserts that Velkoff’s
testimony concerning his risk of re-offense was purely speculative: “Mr.
Velkoff testified that it was mere speculation that [Castro] is likely to commit
sexually violent acts in the future based solely on his Anti-Personality
Disorder and that he committed an individual sexually based offense one
time.” Id. at 19. Lastly, he notes that, of the factors listed in Section
9795.4(b), there was no evidence he (1) used force or threats of force, (2)
had multiple sexual offenses or victims, or (3) suffered from a mental illness
or used drugs or alcohol. See id. at 19-20. Therefore, he argues the trial
court “erred in finding he meets the criteria as a sexually violent predator.”
Id. at 20.
____________________________________________
19
Castro cites to the testimony of Velkoff in which he acknowledged he was
unaware Castro had been acquitted of the charge of rape. See N.T.,
5/5/2006, at 18.
- 14 -
J-S53025-15
Our review of the record reveals no basis for relief. First, to the extent
Castro claims Velkoff’s report was unreliable because Velkoff did not
interview him, we note Castro declined to be interviewed as part of the
assessment,20 and the lack of an interview with the defendant does not
impede the assessor’s ability to determine if a defendant meets the criteria
for classification as a sexually violent predator. See Commonwealth v.
Prendes, 97 A.3d 337, 359 (Pa. 2014) (noting “the absence of an interview
does not preclude the ability to evaluate the offender’s behavior through
available history for characteristics similar or dissimilar to the criteria set
forth in the law for defining a sexually violent predator.”) (citation omitted),
appeal denied, 105 A.3d 736 (Pa. 2014). Moreover, to the extent Castro
seeks to undermine Velkoff’s conclusions because Velkoff did not speak with
the police or the victim, and relied on information not presented at trial, we
note the Act does not require an assessor to conduct any interviews as part
of his sexually violent predator assessment. Further, it is well-established
that an assessor may rely on documents other than transcripts to determine
whether a defendant meets the criteria for classification as a sexually violent
predator. See id. at 362, citing Pa.R.E. 703.
Second, to the extent Castro argues several of the Section 9795.4(b)
factors were lacking, this claim also fails.
____________________________________________
20
N.T., 5/5/2006, at 5.
- 15 -
J-S53025-15
[T]here is no statutory requirement that all of [the factors] or
any particular number of them be present or absent in order to
support an SVP designation. The factors are not a checklist with
each one weighing in some necessary fashion for or against SVP
designation. Thus, [t]he Commonwealth does not have to show
that any certain factor is present or absent in a particular case.
Prendes, supra, 97 A.3d at 358-359 (citation and internal punctuation
omitted).
Here, after considering all of the Section 9795.4(b) factors, Velkoff
concluded the most significant factor was Castro’s prior criminal history.
See N.T., 5/5/2006, at 8. See also Sexual Offender Assessment,
10/5/2005. Velkoff explained that Castro was arrested for simple assault
when he was 14-years-old, and continued to commit offenses every year
until he was 18-years-old, when he was incarcerated for four years. Id. at
9-10, 11. Soon after his release, he was arrested several more times and
imprisoned again. The current sexual assault occurred when he was 23-
years-old and on parole from a prior conviction. Id. at 11. Velkoff also
noted that Castro had several “write-ups” while incarcerated on the present
offense, which “represent a continued tendency to engage in aggressive
behavior, disrespect for staff, [and] disruption of prison routine.” Id. at 10.
Although Velkoff acknowledged none of Castro’s prior convictions were for
sexual offenses, he testified he did not find that to be a significant mitigating
factor because, based on his diagnosis of antisocial personality disorder and
Castro’s extensive criminal history, Castro was likely to commit another
sexual offense now that “he’s broken that barrier, he’s gone in that
direction[.]” Id. at 24. Further, Velkoff also found the absence of
- 16 -
J-S53025-15
intoxication or mental illness noteworthy because “[i]t would imply that
[Castro] was acting on his sexual interest of the victim in a sound state of
mind and a non-intoxicated state of mind.” Id. at 7.
In Commonwealth v. Meals, 912 A.2d 213, 223 (Pa. 2006), the
Pennsylvania Supreme Court emphasized “[t]he task of the Superior Court is
one of review, and not of weighing and assessing evidence in the first
instance.” See id. at 222-223 (holding “Superior Court stepped beyond its
authority when it reweighed the evidence, giving more weight to ‘absent’
factors than to those found and relied upon by the trial court, and ignoring
the Commonwealth's expert's explanation of the relevance of the absent
factors.”). Here, the trial court found Velkoff’s testimony credible, and we
conclude his findings are supported in the record. Accordingly, we will not
weigh the significance of these factors as compared to others that may not
be present in this case.
Lastly, with respect to Castro’s contention that Velkoff’s conclusion
was speculative, such a claim goes to the weight of the assessor’s
testimony, not to the sufficiency of the evidence supporting the assessment.
As this Court has explained:
a Board report or opinion that the individual has an abnormality
indicating the likelihood of predatory sexually violent offenses is
itself evidence. Also while a defendant is surely entitled to
challenge such evidence by contesting its credibility or reliability
before the SVP court, such efforts affect the weight, not the
sufficiency of the Commonwealth’s case. Accordingly, they do
not affect our sufficiency analysis.
- 17 -
J-S53025-15
Commonwealth v. Feucht, 955 A.2d 377, 382 (Pa. Super. 2008), appeal
denied, 963 A.2d 467 (Pa. 2008). Therefore, we conclude Castro’s second
claim warrants no relief.
In his final issue on appeal, Castro argues the sentence imposed by
the trial court is excessive.
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.
Super. 2007) (citation omitted). In order to reach the merits of such a
claim, this Court must determine:
(1) whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) whether
appellant’s brief has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011)
(footnotes omitted).
Here, Castro failed to challenge the discretionary aspects of his
sentence either during the sentencing hearing, or in a timely filed motion for
reconsideration of sentence. “Absent such efforts, an objection to a
discretionary aspect of a sentence is waived.” See Commonwealth v.
- 18 -
J-S53025-15
Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). Accordingly, he is entitled to
no relief on his last claim.21
Judgment of sentence affirmed.
____________________________________________
21
We note that even if Castro had preserved his claim that the trial court’s
sentence was excessive, we would conclude he is entitled to no relief. See
Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015)
(“Sentencing is a matter vested in the sound discretion of the sentencing
judge, and a sentence will not be disturbed on appeal absent a manifest
abuse of discretion.”).
Pursuant to 42 Pa. C.S. § 9781(c)(2), an appellate court must vacate a
sentence imposed within the guidelines range if “the case involves
circumstances where the application of the guidelines would be clearly
unreasonable[.]” Here, Castro asserts the court’s imposition of a 20-year
consecutive term of probation was excessive and unreasonable because: (1)
“the timeframe of the incident was very brief[;]” (2) all three crimes
stemmed from the same brief incident; and (3) the victim was not
“physically injured in a major way[.]” Castro’s Brief at 22-23.
In addressing this issue in its opinion, the trial court noted the
Commonwealth requested Castro be sentenced consecutively on all three
crimes. See Trial Court Opinion, 7/14/2006, at 13-14. However, the court
chose to sentence him consecutively on only the two most serious offenses,
and impose a probationary term for the charge of attempted IDSI. The
Court explained, “[b]ecause the Court would have been within its discretion
to run all of [Castro’s] sentences consecutive and not impose any
probationary periods in lieu of incarceration, the Court finds [Castro’s]
argument that his sentences are unduly harsh without merit.” Trial Court
Opinion, 7/14/2006, at 13-14. We find no reason to disagree.
- 19 -
J-S53025-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2015
- 20 -