Com. v. Altruz, O. ( 2018 )

J-S80037-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
OTHONIER ALTRUZ, :
:
Appellant : No. 2526 EDA 2016
Appeal from the Judgment of Sentence May 12, 2016
in the Court of Common Pleas of Delaware County,
Criminal Division at No(s): CP-23-CR-0004485-2015
BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 27, 2018
Othonier Altruz (“Altruz”) appeals from the judgment of sentence
entered following his conviction of rape, statutory sexual assault, sexual
assault, aggravated indecent assault of a child, indecent assault of a person
less than 16 years of age, indecent exposure, corruption of minors, and
unlawful contact with a minor—open lewdness.1 We affirm.
On June 1, 2015, at around 8:00 a.m., the victim was dropped off by
her mother at her school. The victim, who was 13 years and 11 months old
at the time, decided to skip school. The victim walked past Altruz, who was
sitting in his vehicle. As she did so, Altruz invited the victim to get inside his
vehicle. The victim complied, recognizing Altruz as the pastor of her church.
Altruz subsequently drove the victim to the Red Roof Inn in Essington,
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1 See 18 Pa.C.S.A. §§ 3121, 3122, 3124.1, 3125, 3126, 3127, 6301, 6318.
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Pennsylvania. In its Opinion, the trial described what next transpired as
follows:
[The victim] followed [Altruz] into a hotel room … and he
locked the door. [Altruz] then instructed [the victim] to remove
her clothes, and she said no. … [Altruz] then removed [the
victim’s] clothes himself, despite her struggles to remain
clothed. When all of her clothing was removed, [Altruz]
removed his own clothing. [Altruz] then pushed [the victim’s]
shoulders and she fell onto the bed. He held her by the
shoulders and held her down on the bed. … [Altruz] then
forcefully put his penis into her vagina until he ejaculated.
Afterwards, [Altruz] told her to hurry up and get dressed
because he had to take her back to school. [The victim] then
went to the bathroom and cleaned herself up with toilet paper.
[The victim] and [Altruz] left the hotel and [Altruz]
dropped her off at school. When they arrived, they saw her
mother outside. [The victim] couldn’t recall specifically why her
mother was at the school at this time, but she thought that it
was perhaps because her brother had an appointment. [The
victim] said hello to her mother, and then [the victim] left with
her mom. When her mother asked her what she was doing
outside of the building, [the victim] didn’t answer.
The following day, June 2, 2015, was [the victim’s] school
graduation. According to [the victim], her parents were
suspicious of her behavior on June 1st, and her father asked her
what she had been doing outside of the school. She testified
that she “told him a fake story” that she had skipped school and
that a stranger had snatched her on the street. Upon telling him
this, her father called the police[,] and they both went to the
police station. [The victim] repeated the account to the police at
the police station, but when they got home later that night, she
eventually told her parents that her story wasn’t the truth[,] and
asked them to take her back to the police station. According to
[the victim], it was then that she told the police what had really
occurred between herself and [Altruz].
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Trial Court Opinion, 1/30/17, at 4-5. On June 3, 2015, June Elcock-Messam,
M.D. (“Dr. Elcock-Messam”), examined the victim. Dr. Elcock-Messam
testified at trial that the victim had been exposed to genital trauma.
Police officers subsequently went to Altruz’s home and asked whether
he would accompany them to the police station. Although Altruz responded
in the affirmative, he subsequently fled out of the back door. Police later
apprehended Altruz.
A jury subsequently convicted Altruz of the above-described charges.
Altruz filed a Motion for judgment of acquittal and a Motion for a mistrial.
After oral argument, the trial court denied both Motions. The trial court
sentenced Altruz to an aggregate prison term of 93-192 months, followed by
96 months of probation. Altruz filed a post-sentence Motion, which the trial
court denied. Thereafter, Altruz filed the instant timely appeal, followed by a
court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained
of on appeal.
Altruz presents the following claims for our review:
[I.] Whether the trial court abused its discretion when it denied
the defense [M]otion for mistrial based on unfair surprise and
discovery violations on the Commonwealth’s revelation at trial
that the [victim] had made a suicide attempt shortly before trial?
[II.] Whether the sentence imposed was harsh and excessive
under the circumstances[?]
Brief for Appellant at 10 (some capitalization omitted).
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Altruz first claims that the trial court improperly denied his Motion for
a mistrial. Id. at 17. Altruz challenges the denial of a mistrial based upon
the Commonwealth’s revelation, at trial, that the victim had attempted
suicide. Id. According to Altruz, the Commonwealth failed to produce this
information during discovery, in response to Altruz’s request for “any
evidence which will impeach the credibility of any defense witness.” Id. In
support, Altruz points out the victim’s testimony “that her mom caught her
with scissors shortly before trial, and she had been trying to kill herself by
cutting her wrists.” Id. Altruz also directs our attention to testimony from
the victim’s mother that “the other day, I found her in the dark with a pair of
scissors[,] and she told me she wanted to die.” Id. (citation omitted).
Altruz asserts that this evidence could have been exculpatory, as it could
have gone to the victim’s state of mind, and impacted her ability to recall
events. Id. at 21.
Our review of a trial court’s denial of a motion for a
mistrial “is limited to determining whether the trial court abused
its discretion.” Commonwealth v. Fortenbaugh, 620 Pa. 483,
69 A.3d 191, 193 (Pa. 2013) (internal quotation marks omitted).
A trial court may grant a mistrial “only where the incident upon
which the motion is based is of such a nature that its
unavoidable effect is to deprive the defendant of a fair trial by
preventing the jury from weighing and rendering a true verdict.”
Commonwealth v. Simpson, 754 A.2d 1264, 1272 (Pa. 2000).
Commonwealth v. Cash, 137 A.3d 1262, 1273 (Pa. 2016).
In its Opinion, the trial court addressed Altruz’s claim and concluded
that it lacks merit. See Trial Court Opinion, 1/30/17, at 12-15. We agree
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with the sound reasoning of the trial court, and its conclusion that the claim
lacks merit. See id. We therefore affirm on the basis of the trial court’s
Opinion with regard to Altruz’s first claim. See id.In his second claim of error, Altruz challenges the discretionary
aspects of his sentence. Brief for Appellant at 24. Altruz argues that “there
is a substantial question that the incarceration is not appropriate per the
[S]entencing [C]ode[,] because total confinement requires deep
consideration on the record.” Id.“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,
170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary
sentencing issue,
[this Court conducts] a four[-]part analysis to determine: (1)
whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
has a fatal defect, [see] Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence appealed from
is not appropriate under the Sentencing Code, [see] 42
Pa.C.S.A. § 9781(b).
Moury, 992 A.2d at 170.
In this case, Altruz filed a timely post-sentence Motion, a timely Notice
of Appeal, and includes in his brief a separate statement pursuant to
Pa.R.A.P. 2119(f). However, Altruz’s Rule 2119(f) Statement baldly alleges
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that the sentence imposed was unduly harsh and excessive under the
circumstances. Brief for Appellant at 15.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Prisk, 13 A.3d
526, 533 (Pa. Super. 2011). Further,
[a] substantial question exists only when the appellant advances
a colorable argument that the sentencing judge’s actions were
either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.
Id. (internal citations omitted). Bald allegations of excessiveness, without
more, will not raise a substantial question. See, e.g., Commonwealth v.
Caldwell, 117 A.3d 763, 768 (Pa. Super. 2015) (en banc) (stating that
“[a]n appellant making an excessiveness claim raises a substantial question
when he sufficiently articulates the manner in which the sentence violates
either a specific provision of the sentencing scheme set forth in the
Sentencing Code or a particular fundamental norm underlying the sentencing
process.”).
Here, Altruz baldly asserts that his sentence is “unduly harsh and
excessive under the circumstances herein.” Brief for Appellant at 15. Altruz
presents no other support for his claim. We therefore conclude that Altruz
has not presented a substantial question that his sentence is inappropriate
under the Sentencing Code.
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We note that in the Argument section of his brief, Altruz couples his
excessiveness claim with a claim that the trial court failed to comply with 42
Pa.C.S.A. § 9721, which sets forth the factors to be considered by the
sentencing court. This Court has held that “an excessive sentence claim—in
conjunction with an assertion that the court failed to consider mitigating
factors—raises a substantial question.” Commonwealth v. Raven, 97 A.3d
1244, 1253 (Pa. Super. 2014).
Even if Altruz had included this portion of his sentencing challenge in
his Rule 2119(f) Statement, thereby establishing a substantial question, we
would conclude that he is not entitled to relief.
“Sentencing is a matter vested within the discretion of the trial court
and will not be disturbed absent a manifest abuse of discretion.”
Commonwealth v. Crump, 995 A.2d 1280, 1282 (citation omitted). “An
abuse of discretion requires the trial court to have acted with manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support so as to be clearly erroneous.” Id. (citation omitted).
Altruz asserts that the trial court failed to consider the factors specified
by 42 Pa.C.S.A. § 9721. Brief for Appellant at 25. In support, Altruz
argues that the trial court failed to state, on the record, the reasons for the
sentence it imposed, and that the court’s “list of the materials it read is not
reasons.” Id. at 26. Altruz states that “[n]o attention was given to whether
or not [Altruz] had been convicted of another crime,” whether he would
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commit another crime if not incarcerated, whether partial confinement is
indicated, or the other considerations mandated by 42 Pa.C.S.A. § 9725.
Brief for Appellant at 27.
In its Opinion, the trial court addressed Altruz’s claim and concluded
that it is without merit. See Trial Court Opinion, 1/30/17, at 17-19. If
Altruz had presented a substantial question in his Rule 2119(f) Statement,
we would agree with the sound reasoning of the trial court, and affirm on
this basis with regard to Altruz’s sentencing challenge. See id.; see also
Commonwealth v. Hunzer, 868 A.2d 498, 514 (Pa. Super. 2005) (stating
that, when sentencing in the standard range of the sentencing guidelines, “a
sentencing judge may satisfy [the] requirement of disclosure on the record
of his reasons for imposition of a particular sentence without providing a
detailed, highly technical statement.”).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/27/18
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I IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
l CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA NO. 4485-2015
v.
OTHONIER ALTRUZ
OPINION
Mallon, J. Filed: / - 3j-/7
i Appellant, Othonier Altruz, appeals to the Superior Court from the Judgment of
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Sentence entered by this Court oh May 12, 2016:. The nature and history of the case
t are as follows:
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i I. Nature and History of the case
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Following a four-day triaJ, with jury selection on January 15, 2016, and trial
beginning on January 20, 2016 and ending on January 22, 2016, a jury found the
Appellant guilty of rape, statutory sexual assault, sexual assault, aggravated indecent
assault of a child, indecent assault of a person less than 16 years of age, indecent
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exposure,. corruption of minors, and unlawful contact with a minor - open lewdness.
Sentencing was deferred pending an evaluation by the Pennsylvania Sexual
Offender Assessment Board. On May 10, 2016, defense counsel filed a "Motion for
Mistrial Due to Prejudicial Testimony Following Revelation of a Suicide Attempt", a .
"Motion for Judgment of Acquittal", and "Motion for Mistrial Due to Errors in
Translation." The court heard argument on these motions prior to the sentencing
hearing on May 12, 2016, and denied them in open court.1 Appellant was sentenced to
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The court then formalized this denlal-ln an order dated May 16, 2016.
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serve an aggregate sentence of 93 months to 192 months of imprisonment in a state
facility, as well as 96 months of consecutive probation. Appellant was found to be a
sexually violent predator.
On May 18, 2016 defense counsel filed a "Motion for Reconsideration" and a
"Motion to Withdraw as Counsel." A hearing was held on June 6, 2016 at which time
the court accepted defense counsel's motion to withdraw as counsel. On July 12, 2016,
Appellant filed a pro se notice of appeal. The Public Defender's Office subsequently
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I entered its appearance and filed a notice of appeal on August 4, 2016. The court issued
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I . an order requesting a concise statement of matters complained of on appeal on August
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i 11, 2016, and thereafter granted two (2) requests for an extension of time to file a
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r .concise statement. Appellant raises the following issues in his Statement of Matters
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Complained of on Appeal:
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(1) Whether the sentence imposed was harsh and excessive under the
circumstances. There is a substantial question that the sentence is not
appropriate per the sentencing code because it requires deeper consideration
as to total confinement, whether partial confinement is indicated,. whether
correctional treatment c.an only be completed during incarceration, and
whether a lesser sentence would depreciate the seriousness.of the offense.
(2) Whether the Trial Court abused its discretion when it denied the defense
motion for mistrial based on unfair surprise and discovery viofations on the
Commonwealth's revelation at trial that the alleged victim had made suicide
attempts?
{3) Whether the Trial Court abused its discretion when it denied the defense
motion for judgment of acquittal and the post-sentence motion challenging
the sufficiency of the evidence because the age of the defendant was not
properly placed into the record at trial?
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l (4) Whether the Trial Court abused it.s discretion when it overruled the defense
j objection and the post-sentence motion based on the inadequacy, lack of
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qualifications and extra-judicial conversations of the interpreter?
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II. Discussion
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) Sufficiency of the Evidence
I Appellant claims that the court abused its discretion when it denied the defense
r motion for judgment of acquittal and the post-sentence motion challenging the
sufficiency of the evidence because the age of the Appellant was not properly placed
into the record at trial. In the instant case, a Motion for Judgment of Acquittal was filed
l1 on May 10, 2016 ln which the defense argued that the verdict should be set aside
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t because there was no testimony elicited at trial establishing the defendant's age.
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I Specifically, he claimed that the evidence was insufficient to sustain the Appellant's
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I convictions of statutory sexual assault, aggravated indecent assault, indecent assault,
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and corruption of minors. The court heard oral argument on this motion on May 12,
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I 2016, and the- motion was denied in open court.
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l In reviewing a challenge to the sufficiency of the evidence, an appellate court
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I considers the evidence admitted at trial and all reasonable inferences therefrom in the
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light most favorable to the Commonwealth as the verdict winner. Commonwealth v.
Ratsamr, 594 Pa. 176, 934 A.2d 1233, 1237 (2007). A court may not substitute it.s
judgment for that of the fact-finder and the critical inquiry. is whether the evidence
believed by the fact-finder was sufficient to support the verdict as opposed to whether
the court believes the evidence established guilt beyond a reasonable doubt.
Commonwealth v.. Sinnott, 612 Pa. 321, 331, 30 A.3d 1.105, 1110 (2011) (emphasis
added). Lastly, the uncorroborated testimony of a sexual assault victim, if believed bv.
the trier of fact, is sufficient to convict a defendant. Commonwealth v. Charlton, 920
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A.2d 554, 455 (Pa. Super. 2006). The evidence, viewed in the light most favorable to
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the Commonwealth follows.
The Commonwealth produced evidence that the victim was 13 years and 11
r months of age on the date of .these crimes. N.T. 1/20/16, p. 43. The victim was born
July 5, 2001. Id. The rape occurred on June 1, 2015. Id at 45. The evidence
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·' established that on June 1, 2015, after the victim in this case, (hereinafter referred to
I as ''M.M.j, was dropped off at Chester Community Charter School by her mother, she
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walked by the Appellant who-was sitting in his car. Id at45-50. The Appellant told her
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i to get in, and M.M. complied. Id at 50-51. According to M.M., she knew the Appellant
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as he was her Pastor. Id at 47-48. M.M. used to play" the piano at the Appellant's
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I' church almost every day. Id. at 48-49. She described the Appellant as a nice person. Id.I
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i at 55. Once she got in the car, the Appellant drove away from the school and took her
to a hotel. Id at 53-54. Specifically, the Appellant took her to the Red Roof Inn in
Essington, Pennsylvania. He told her to follow him, and she did. Id at 55. ·
M.M. followed· the Appellant into a hotel room at the Red Roof Inn, and he
locked the door. Id at 55. The Appellant then instructed her to take off her clothes, and
she said no. Id at 61. M.M. explained that the Appellant then removed her clothes
himself, despite her struggles to remain clothed. Id. at 62. When all of her clothing was
removed, the Appellant removed his own clothing. Id at 63. The Appellant then pushed
her shoulders and she fell onto the bed. Id He held her by the shoulders and held her
down on the bed. Id. at 64. M.M. testified that the Appellant then forcefully put his
penis into her vagina until he ejaculated. Id. at 66-67. Afterwards, the Appellant told
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I Id at 81. She testified that on one occasion, she attempted to cut her wrists. Id. at 81-.
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82.
Dr. June Elcock-Messam, an expert in child sexual abuse, testified at trial. N.T.
I N.T. 1n.1/l6 pp. 5-6. Dr. Messam evaluated M.M. on June 3, 2015 for a child abuse
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evaluation following her report of a sexual assault to Officer Jones. Id. at 6-7. Dr.
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Messam testified that she first met with M.M.'s father and went over her past medical
I and social history with him. Id. at 8. She then met with M.M. alone. Id. Dr. Messam
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'I explained that she performed a physical examination of M.M. which included a rape kit.
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! Id. at 9. t"fer evaluation was difficult because the physical examination portion caused
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I M.M. a significant amount of pain and noteasv for her to tolerate. Id. at 10. Dr.
I Messam testified that M.M. was very swollen and concluded that she had recently been
exposed to genital trauma of some kind. Id at 11. However, she �s unable to
examine her vagina or hymen. Id. at 22. M.M. told Dr. Messam that "he put his penis in
my vagina." Id. at 12. Because M.M. had taken a shower after the incident, Dr. Messam
was unable to collect a number of samples that she would typically send out for testing.
Id. at 13.
Officer Robert Jones, an officer with the Juvenile DiVision of the �ity of Chester
Police Department, testified that he interviewed M.M. on June 2, 2015. Id. at 30-32.
-M.M. arrived at the police station and a taped statement was taken from her. Id. at 32.
M.M. told him that she had skipped school and walked over towards Chester
Transportation Center and was abducted by an unknown male who threw a hood over
her head and put her in what she believed was a car, Id at 45. Later that night after
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M.M. told her parents that she was not entirely truthful in her first statement to the
police, they again contacted Officer Jones ' and M.M. gave a second taped statement.
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N.T. 1/20/16 p. 199�201 and N.T. 1/21/16 p, 32-33. She told him that she was sexually
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i assaulted in a vehicle and that she had lied In her first statement about not knowing
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I who her assailant was. Id. She identified the Appellant as her assailant and showed
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i Officer Jones a photo of him on Facebook. Id. She further stated that the incident had
occurred in a church parking lot. Id. at 55. Officer Jones made an appointment for M.M.
; to go and see Dr. Messam the following day. Id. at 32, 45. ,
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! Officer Jones testified that he and a fellow officer followed up on M.M.'s
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I complaint and had the Appellant's car towed in order to further investi�ate her
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! allegations. Id. at 33-34. When they arrived at the . Appellant's home, his wife and
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daughter appeared outside and he followed. Id. at 33. Officer Jones asked the
Appellant if they could talk to him at the police station, and the Appellant said \\yes" and ·
explained that he had to first go inside and get his sneakers and wallet. Id. at 34.
Instead, the Appellant went lnslde his home and fled out the back door.
According to Officer Jones, the Appellant was later apprehended and his other
car was towed to the police station.2 Id. at 35. On June 6, 2015, M.M. was brought
back into the police station so that the police could obtain a buccal swab from her. Id.
at 36. When she was informed that the Appellant was in custody,' she revealed to
Officer Jones that she had also Ued when she stated that the incident had occurred in a
vehide and told him that the assault had occurred at the Red Roof Inn. Id. at 36.
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A search warrant was obtained to .sean::h the Appellant's car. N.T. 1/21/16, pp. 55-56
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Consequently, Officer Jones then went to the Red Roof Inn to further investigate and
discovered that the Appellant had been to the hotel on two separate occasions. Id. at
37-38.
Officer Jose Alvarez, who often .worked in the area of Chester Community
I Charter School, also testified at trial. N.T., 1i21/16, pp. 68-69. Officer Alvarez was
familiar with the Appellant and often observed him dropping M.M. and her brother at
\ the school in the mornings. Id. at 69-70. Officer Alvarez assisted in Identifying the
Appellant's vehicle.
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In addition to the testimony and evidence presented by the victim and police, the
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jury also heard testimony from Christine Bilios, the front office manager at the Red Roof
Inn in Essington. She had worked there for almost 18 years. She did not see the
Appellant check-in the day of the rape but she testified as to the check-in and check-
out procedures at the hotel. According to the hotel's billing records the Appellant
rented a room on June 1, 2015, with a Visa credit card in his· name. The practice of the
hotel is to ask for identificat�on when presented with a credit card. This information is
then put into the hotel's computer and that is how payment for the room is made. N.T.
1/20/16 pp. 229-232. A receipt for the room payment was generated. Id. at 230. Sae
also Exhibit C-20. Lisa Loggia, who worked at the front desk at the Red Roof Inn,
testified that she recalled checking the Appellant into the hotel that day and seeing him
leave with a young lady that same afternoon. N.T., 1/20/16, pp. 235-39; 229-32.
At trial, defense counsel maintained that the sexual encounter between the
Appellant and M.M. did not occur, and argued that M.M. had gotten caught up in a web
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of lies. The following stipulation was read into evidence at trial:
1)
On June 4, 2015 the (sic) number of fingemall, hair and pubic hai9 oral swabs
and vaginal swabs and bucca/ swabs were taken from the Defendant and the
alleged victim as well as from the suspect vehide belonging to the Defendant A
copy of the serology laboratory report is attached to this stipulation as Exhibit A.
On November 25, 2015 the DNA analysis was returned from the items listed in
the serology laboratory report, a copy of the DNA analysis is attached as Exhibit
B. Paragraph three, the DNA analysis could not produce any conclusive results
for either the alleged victim or the Defendant. Signed by the Office of the District
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I Attorney and by counsel for the defense.
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N.T., 1/21/16, pp. 92-93; see also Defense Exhibit 0-23.
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\I A person commits statutory sexual assault, a first-degree felony, when that
l person engages in sexual fntercourse with a complainant under the age of 16 years and
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that person is 11 or more years older than the complainant and the complainant and
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I the person are not married to each other. 18 Pa.CS.A. § 3122.l(b). Aggravated
\ indecent assault of a child, a first-degree felony, is committed where a person engages
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in "penetration, however sllght, of the genitals or anus of a complainant with a part of
the person's body for any purpose other than good faith medical, hygienic or law
enforcement procedures commits aggravated indecent assault if: ... the complainant is
less than 16 years of age and the person is four or more years older than the
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complainant and the complainant and the person are not married to each other." 18
Pa.C.S.A. § 3125(a) (8). Indecent assault of a person less than sixteen years of age, a
second-degree misdemeanor, is committed where: a "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 .
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J and ... (8) the complainant is less than 16 years of age and the person is four or more
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years older than the complainant and the complainant and the person are not married
to each other. 18 Pa.C.S.A. § 3126(A) (8). Section 6301 of the Crimes Code defines
l ''Corruption of minors:" "whoever, being of the age of 18 years and upwards, by any
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act corrupts or tends to corrupt the morals of any minor less than 18 years of age, or
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who aids, abets, entices or encourages any such minor in the commission of any crime,
\l or who knowingly assists or encourages such minor in violating his or her parole or any
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! order of court, commits a misdemeanor of the first degree." Finally, ''Unlawful contact
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I with minor," a third-degree felony, is committed when a person is "intentionally in
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[Chapter 31 (relating to sexual offenses)) and either the person initiating the contact or
the person being contacted is· within this Commonwealth/' 18 Pa.CS.A. § 6318 (A)(2).
Orcumstantial · evidence proved beyond a reasonable doubt that M.M. was 13
years and 11 months age on June 1, 2015 when she was raped and that the Appellant
was more that eleven years older than his victim. The Commonwealth may sustain its
burden of proving each element of the crime charged beyond a reasonable doubt by
means of wholly" circumstantial evidence. See M· Commonwealth v. Vargas, 108 A.3d
858, 867-68 (Pa. Super. 2014) quoti'!g Commonwealth v. Brown, 23 A.3d 544, 559-
560 (Pa. Super.2011). A jury may rely on circumstantial evidence alone:
Circumstantial evidence alone may be sufficient to prove the defendant's .
guilt If there are several separate pieces of circumstantial evidence, it is
not necessary that each piece standing separately convince you of the
defendant's guilt beyond a reasonable doubt. Instead, before you may
find the defendant guilty, all the pieces of circumstantial evidence, when
considered together, must reasonably and naturally lead to the conclusion
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'
!
.! that the defendant is guilty and must convince you of the defendant's guilt
l beyond a reasonable 'doubt, In other words, you may find the defendant
guilty based on circumstantial evidence atone, but only if the total amount
and quality of that evidence convince you of the defendant's guilt beyond
a reasonable doubt. ·
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[
} Pennsylvania Suggested Standard Criminal Jury Instructions 7.02A Direct and
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Circumstantial Evidence.
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\ M.M. was born on July 5, 2001. Id. at pp. 43-44. Although no witness testified as
II
to the Appellant's age on the day of the rape there was evidence from which jury could
l
I find beyond a reasonable doubt that the Appellant was at least eleven (11) years older
\
than the victim. Betzaida Mass testified that she had "known" the Appellant for
seventeen (17) years. When asked "how do you know him." she said that "He's my
husband". N.T. 1/21/16 pp. 94-95. Though there is nothing of record to indisputably
establish that they were married for seventeen (17) years, her testimony along with the
jurors' ability to observe Ms. Mass and the Appellant during his four (4) day trial
enabled the jury to conclude beyond a reasonable doubt, that the age difference
required by statute (11 years) was sufficiently proven. Commonwealth v. Nelson/ 320
Pa. Super. 488, 46? A.2d 638 (1983). Physical appearance is circumstantial evidence of
Appellant's approximate aqe. Commonwealth v. Mille� 441 Pa.Super. 320, 657 A.2d
946 (1995), Commonwealth v. Jones, 314 Pa.Super. 497, 461 A.2d 267 (1.983)3
3
The court also had the ablllty to observe the Appellant during his trial. In light of this and other
clrcumstantlal evidence, e.g., the ability to manage churches both here and in Puerto Rfco N.T. 1/21/16
pp. 94�95, produced at trial the court denied Appellant's trial attorney's motion to acquit for failure to
produce testimony from a certified document or IIVe witness as to the Appellant's age. The court belleved
that unless the Appellant suffered from a medical condition that causes rapid aging, his physical
appearance alone allowed the court and the jury, the finder of fact, to conclude that Appellant was more
than eleven years older than the victim.
11
1.•
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i?Y its verdict the jury found that the eleven (11) year age difference was sufficiently
proven. Anally, the COmmonwealth1s Exhibit 15 Incident Report of the Chester Qty
Police Department was admitted into evidence. It recites the Appellant's date of birth as
06/26/1961 and it recites that he was 53 years of age when arrested. Though this
l exhibit was admitted it was not sent out with the jury. It was further established that
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\ the Appellant was married and not to M.M.
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This court will not substitute its judgment for that of the jury in this case and
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\ reiterates that "the uncorroborated testimony of the complaining witness is sufficient to
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convict a defendant of sexual offenses.'1 Commonwealth v.. Bishop, 742 A.2d 178, 189
(Pa.Super.1999), appeal denied, 563 Pa. 638, 758 A.2d 1194 (2000). The court
respectfully submits that this issue is without merit:
Motion for Mistrial
The Appellant claims that court abused its discretion when It denied the defense
motion for mistrial based on "unfair surprise" and "discovery violations" on the
Commonwealth s revelation at trial that the alleged victim had made suicide attempts.
1
In the c.ase sub judice, at trial testimony was offered that M.M. had attempted
suicide following the sexual assault. Following an objection by the defense, the court
!/
denied a motion for mistrial. Defense counsel argued unfair surprise and claimed that
this information �as Brady material. N.T. 1/20/2016 at 82-87. On May 10, 2016,
defense counsel renewed his motion in a pre-sentence motion entitled Motion .for
Mlstrial Due to Prejudida/ Testimony Following Revelation of a Suicide Attempt The
court denied this motion Jn open court on May 12, 2016.
12
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At trial M.M. testified that after the sexual assault she attempted to commit
suicide by using a pair of scissors to cut her wrists •. Appellant's trial counsel made a
f timely motion for a mistrial on the grounds that the Commonwealth violated Brady vs.
)
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I Maryland, 373 U.S. 83, 93, 83 s. a. 119�, 1200, 10 L.Ed.2d 215 (1963), by failing to
I advise Defense counsel of this fact. N.T. 1/20/16 pp. 81-83, 161-172. The court denied
j
.i.. said motion Jdat 170 •
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lI
To establish a Bradyviolation, appellant must demonstrate: (1) the prosecution
concealed evidence (2) the evidence was either exculpatory or impeachment evidence
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favorable ·to him; and (3) he was prejudiced. Commonwealth v. Treibe� 121 A.3d 435,
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460-61 (Pa. 2015) citing, Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111, 1127,
\
� 1130 (2011) (quoting Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431, 450 (2011)).
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To establish prejudice, appellant must demonstrate a "reasonable probability that, had
the evidence been disclosed to the defense, the result of the proceeding would have
been different.'' Commonwealth v. Burke, 566 Pa. 402, 781 A.2d 1136, 1141 (2001).
'
"\Impeachment evtdencel.] which goes to the credibility of a primary witness against
the accusedl.] is critical evidence and it is material to the case whether that evidence is
merely a promise or an understanding between the prosecution and the witness.' "
· Chmiel, at 1131 (quoting Commonwealth v.. Strong, 563 Pa. 455, 761 A.2d·1167, 1175
(2000). "However, mere conjecture as to an understanding i� not sufficient to establish
a Bradyviolation." Id. (citation omitted). Finally, we note "[t]here is no Brady violation
when the appellant knew or, with reasonable diligence, could have uncovered the
evidence in question[.]" Paddy, at 451.
13
( .
In the instant matter, the Appellant's claimed Brady violation clearly fails on at
least two (2) of the three (3) bases that are required. First and foremost is the fact of
the victim's suicide attempt Is neither "exculpatory or impeachment evidence favorable
to him". Second, if this fact had been known to the Appellant's trial counsel beforehand
there is no "reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different". The record developed
I
\ at side bar shows that other than being aware of the suicide · attempt the
I
i
\ Commonwealth had no· [written] report or any "details to which that was going to be
I
\
i testified to". N.T. 1/20/16 pp. 83-84. The Assistant District Attorney first learned of this
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fact the night before the trial during trial prep. N.T. 1/20/16 p. 161; N.T. 5/5/16 p. 14.
Third, the suicide attempt happened long after the rape (N.T. 1/20/16 p. 185) and does
not rise to the level of the type of evidence that might exculpate the Appellant e.g., the
DNA of a third party, video recordings, written confessions of a third party, prior
inconsistent statements of the victim, and similar such items. Yes, the evidence of the
suicide may very well have buttressed the victim's credibility but it was not ''exculpatory
or impeachment evidence". See Treibe� supra. Finally, as there were no details
(medical records, statements to a counselor, etc.) of the attempted suicide there would
be nothing for Appellant's trial attorney to investigate had the trial been stopped to
allow for such investigation. The victim attempted to cut her wrists with a scissor a few
days before the trial. Her mother found her and intervened. Appellant's trial counsel
was given this information the very day after it came into the Commonwealth's
possession. That ts all. It either happened or it did not. Cross-examination is the way to
14
f'
I test the truth and Appellant's trial counsel was given full latitude to do so. The Assistant
I District Attorney proffered the idea of a continuance to allow Appellant's trial counsel to
J
investigate but there was no taker. N.T. 1/20/16 p. 161. Understandably so because
there was nothing to explore.
Interpreter
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,i
Next, Appellant claims that the court abused its discretion when it "overruled the
\ defense objection and the post-sentence motion based on the inadequacy, lack of
'•
i
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l qualifications and extra-judicial conversations of the interpreter." These matters were
\ i
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not preserved. through timely contemporaneous objections at trial the therefore they
\ '·
have been waived. See e.g. Commonwealth v. An, 10 A.3d 282, 293 (Pa. 2010);
Pa.R.A.P. 302(a) ('\Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal,")
At trial, defense counsel brought to the court's attention a claim that a question
posed by him during his cross examination of Angelica Magallanes, the victim's mother
was erroneously translated. N.T. 1/20/16, pp. 206-10. Specifically, defense counsel
claimed that he had asked "whether or not M.M. had skipped school in the past" and
the interpreter translated this to "whether or not M.M. had been absent from school in
the past" Id at 206-07 (emphasis added). Defense counsel did not actually object but
stated the following: "I would just ask that you caution the interpreter to. use the words
that we use." Id. at 207. Following this request, the interpreter was railed to side bar
and the court inquired about defense counsel's claim. In response, the interpreter
explained that "there's no real word in Spanish for, you know, skipping in the sense of
15
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deliberately failing to go.'' Id. at 209. Defense counsel did not lodge a formal objection
to the prior testimony and did not move to strike.
Appellant's trial counsel strenuously asserted, without further proof-despite
\r
I what the AOPC certified interpreter said- that in Puerto Rican Spanish there is a word
J
I for ''skipping" school. The court believes that the Appellant's trial counsel was trying to
I show that the victim was -lying about being raped by the Appellant bec.ause she did 'not
d,
\ want to get in trouble for skipping school-perhaps because in the past the victim had
I\
l gotten in trouble for skipping school. Assuming arguendo that this claim was not
\
i waived, for failure to formally object and/or moving to strike, for the following reasons
t
it lacks merit
First, when the victim's mother was asked whether prior to June 1 M.M. was
likely to skip school she said no, that M.M. went to school, and she liked to participate,
and won a lot of prizes because she liked reading, she would take part and she won
first place In school. N.T., 1/20/16, p. 191. Such is not the behavior of a child who skips
school.
Second, absences from school without a parent's permission, i.e., skipping
school, are a subset of absences in general. ·When the victim's mother was asked about
"absences" from school this would include all types of absences. So if the victim's
mother was not aware of any "absences" from school then it Is reasonable to conclude
that had the interpreter used the word that Appellant wanted used to describe skipping
school he would have gotten the same answer that the victim's mother gave.
Third, other than a theory about the victim's skipping school the defense made
16
no offer of proof other than a bald suggestion that she had a history skipped school. No
school records were .offered to support this aUegation.
Fourth, we note that the Appellant was free to explore this alleged discrepancy
through further cross-examination but made no request to re-examine the witness. In
light of these circumstances the court respectfully submits that the AOPC certified
Spanish interpreter's translation was correct and regardless of the supposed existence
'.i .
of a Puerto Rican Spanish word for "sklp" the Appellant's claim is without merit.
\
I Finally, in paragraph number 4 of his Statement of Matters Complained of on
\
\
Appeal Appellant challenges the qualifications of the Interpreter and raises a claim
\
concerning "extra-judicial conversations of the interpreter." These claims have been
waived. Delaware County engages AOPC certified interpreters. The Appellant did not
request any voir dire of the lnterpreter before or after the interpreter was administered
the oath. By failing to object generally to the qualifications of the interpreter and by
failing to inquire as to the interpreter's certifications/qualifications the Appellant waived
any later objection. Regarding Appellant's complaint of "extra-judicial conversations of
the interpreter, n again no timely objection was made. Accordingly, the record is devoid
of facts that might form the basis of this claim and the Court is unable to address its
merits.
Sentence Imposed
In his final issue, Appellant asserts that the sentence imposed was harsh and
17
T'
excessive under the circumstances.
Our Court has stated that the proper standard of review when considering
whether to affirm the sentencing court's determination is an abuse of
discretion. [A]n abuse of discretion is more than a mere error of judgment;
I thus, a sentencing court will not have abused its discretion unless the record
} discloses that the judgment exercised was manifestly unreasonable, or the
result of partiality, prejudice, bias or ill-will. In more expansive terms, our
J Court recently offered: An abuse of discretion may not be found merely
(
I because an appellate court might have reached a different conclusion, but
requires a result of manifest unreasonableness, or partiality, prejudice, bias,
(\
.. \ or ill-will, or such lack of support so as to be clearly erroneous •
;
\,
I The rationale behind such broad discretion and the concomitantly deferential
standard of appellate review is that the sentencing court is in the best
position to determine the proper penalty for a particular offense based upon
an evaluation of the Individual circumstances before it. Simply stated, the
sentencing court sentences flesh-and-blood defendants and the nuances of
sentencing decisions are difficult to gauge from the cold transcript used upon
appellate revfew. Moreover, the sentencing court enjoys an institutional
advantage to appellate review, bringing to its decisions an expertise,
experience, and judgment that should not be lightly disturbed. Even with the
advent of the sentencing guidelines, the power of sentencing is a function to
be performed by the sentencing court.
Commonwealth v. Harvard, 64 A.3d 690, 701 (Pa. Super. 2013) (internal citation
omitted).
The court submits that the AppellarJt's sentence was not excessive. In the case
.· i
sub judice, before imposing the Appellant's sentence, this court considered the factors
set forth in 42 Pa.C.S.A. § 9721(b) including the nature and seriousness of the crime;
1�
the age, family status, education and employment status of the Appellant; the
statements ·of the Commonwealth and defense counsel; the Appellant's sentencing
guidelines; the rehabilitative needs of the Appellant; and the protection of the public.
See N.T. 5/12/16 pp. 32-33. The court ronsidered the Psycho-Sexual Evaluation and the
Pre-Sentence Investigation and the particular facts set forth therein including the
18
Appellant's evident lack of remorse and failure to accept responsibility in the face of
overwhelming evidence of his guilt. The court also considered the Sexual Offender
Assessment Board (SOAB) evaluation. The court considered Appellant's testimony at
sentencing which served to corroborate the findings set forth in the reports secured in
anticipation of sentencing. The sentences for each count fall within the standard range
suggested by the Pennsylvania Sentencing Guidelines. Based on this record, the claim
!··
\. that an excessive sentence was imposed fails. See generally Commonwealth v. Swope,
l
123 A.3d 333, 337 (Pa. Super. 2015)
I
i
'\ III. Conclusion
i,
1 In light of the aforementioned, it ts respectfully submitted that the verdict is fully
supported by the record and applicable legal authority, and that there is no merit to
Appellant"s appeal. It is. for the reasons set forth above that this court respectfully
submits that Appellant's Judgment of Sentence be affirmed.
·-:
BY
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