Com. v. Vasquez-Diaz, A. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ANGEL VASQUEZ-DIAZ
Appellant No. 369 EDA 2014
Appeal from the Judgment of Sentence September 17, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008880-2012
BEFORE: BOWES AND MOULTON, JJ., AND STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED MAY 22, 2017
Angel Vasquez-Diaz appeals pro se from the aggregate judgment of
sentence of thirty-five to seventy years incarceration imposed after a jury
found him guilty of rape by forcible compulsion, involuntary deviate sexual
intercourse with a child, unlawful contact with a minor, endangering welfare
of a child, indecent assault, and terroristic threats. Since Appellant was
sentenced to a mandatory minimum sentence under a statute that has been
declared unconstitutional, we vacate judgment of sentence and remand for
resentencing. In all other respects, we affirm.
The minor victim in this matter, B.P., lived with her mother and three
siblings in her mother’s home. N.T. Vol. I, 5/21/13, at 41-43. Appellant,
who was dating B.P.’s mother, would often stay the night. Id. at 41. One
* Former Justice specially assigned to the Superior Court.
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day, Appellant followed B.P. from the shower to her bedroom. Id. at 43.
With the aid of a diagram, B.P. testified that Appellant rubbed his penis on
her vaginal area and inserted his penis into her anus. Id. at 52-56. He told
her that if she told anyone, he would kill her family. Id. at 61. B.P.
eventually told her sister, C.P. Id. at 59.
C.P. testified that in March of 2012, B.P. told her that Appellant had
touched her. Id. at 80. She immediately called their older sister, Aisha.
Id. at 81. Aisha, in turn, called B.P’s father, who took C.P. and B.P. to the
hospital. Id. at 113. C.P. also testified that her mother said Appellant had
watched C.P. while she took a shower, and that she awoke several times to
see Appellant watching her sleep. Id. at 82-84.
Philadelphia Police Officer Leonard Johnson was dispatched to the
hospital for the reported rape, where he met B.P., C.P., and their father. Id.
at 21. He spoke to B.P., who told him that Appellant raped her on January
3, 2012. Id. at 23, 28.
The Commonwealth also presented Dr. Marcia McColgan, an expert
witness in the field of pediatric child abuse. N.T., 5/22/13, at 32. She
evaluated B.P. on April 24, 2012, and observed an area where there was
almost no hymen, which she explained can occur in child sexual abuse cases
but does not necessarily prove that penetration occurred. Id. at 44-45. Dr.
McColgan also testified that the anus is meant to stretch, and that
penetration can occur without lasting physical trauma. Moreover, where
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superficial injury has occurred, that trauma can heal without any residual
scarring. Id. at 45. She also noted that B.P. stated the incident occurred in
January or February. Id. at 46.
Appellant was found guilty of the aforementioned crimes and
sentenced to an aggregate term of thirty-five to seventy years
imprisonment. This sentence included the imposition of a mandatory
minimum term of no less than ten years incarceration.1 See 42 Pa.C.S. §
9718. During the pendency of these proceedings, that statute was declared
unconstitutional in its entirety. Commonwealth v. Wolfe, 140 A.3d 651(Pa. 2016). The Commonwealth concedes that Appellant is entitled to
resentencing.
Appellant filed timely post-sentence motions, which were denied by
operation of law, followed by a timely notice of appeal. Appellate review was
repeatedly delayed by the unavailability of trial transcripts. On May 28,
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1
We note that the Commonwealth correctly states Appellant was convicted
of rape by forcible compulsion, 18 Pa.C.S. § 3121(a)(1), while the trial court
opinion states that the “mandatory minimum sentence [was] for his
conviction of having sexual contact with a victim under the age of 13 years .
. . pursuant to 42 Pa.C.S.A. § 9718(a)(3)[.]” However, § 9718(a)(3) applies
to a conviction of 18 Pa.C.S. § 3121(c), which is rape of a child. For
unknown reasons, the Commonwealth did not elect to proceed on the rape
of a child charge.
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2015, the trial court held a Grazier2 hearing and permitted Appellant to
represent himself on appeal.
Appellant filed a new concise statement of errors complained of on
appeal, and the trial court authored its opinion on March 23, 2016.
Appellant presents for our review the same issues raised in his Pa.R.A.P.
1925(b) statement, which we summarize as follows:
I. The trial court erred in recording the verdict as the jurors
did not unanimously agree.
II. The trial court improperly admitted testimony that
Appellant watched the victim’s sister showering and
sleeping.
III. The trial court improperly prohibited Appellant from cross-
examining the victim’s sister about her drug use.
IV. The trial court improperly permitted several jurors to be
seated on the panel.
V. The trial court impermissibly permitted the jurors to
receive a transcript of the expert witness’s testimony.
VI. The Commonwealth orchestrated the proceeding through
deliberate deception.
VII. Insufficient evidence supported the conviction for rape by
forcible compulsion.
VIII. The verdict for rape is against the weight of the evidence.
IX. Appellant is serving an illegal mandatory minimum
sentence.
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2
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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Appellant’s brief, passim.
Appellant’s first issue concerns the answer of juror number one
following Appellant’s request to poll the jury. When the foreperson asked,
“Do you agree or disagree with the verdict as stated?”, the juror replied,
“Yes.” Since this question as answered was clearly ambiguous, Appellant
claims the verdict was not unanimous. The Commonwealth asks us to find
the issue waived, noting that Appellant has attached to his brief an excerpt
of the transcript which is not included in the certified record. In the
alternative, the Commonwealth asks us to deem the claim waived because
Appellant failed to object to the ambiguous answer.
We decline to find the issue waived on the basis that Appellant failed
to properly include the transcript in the record. “Our law is unequivocal that
the responsibility rests upon the appellant to ensure that the record certified
on appeal is complete in the sense that it contains all of the materials
necessary for the reviewing court to perform its duty.” Commonwealth v.
Preston, 904 A.2d 1, 7 (Pa.Super. 2006) (citation omitted). However, the
trial court’s opinion remarks that “[t]here was an extraordinary delay in the
production of the entire set of trial transcripts . . . as requested by the
defendant[.]” Trial Court Opinion, 3/21/16, at 2. On June 5, 2013, the
court issued an order directing the production of all notes of testimony.
Order, 6/5/13, at 1. Yet, as of the Grazier hearing on May 28, 2015,
several portions of the proceedings had yet to be transcribed, prompting the
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court to issue yet another order. N.T., 5/28/15, at 13-15. Furthermore, the
trial court addressed this claim in its opinion, and, while not directly quoting
the relevant portions of the transcript, the court’s opinion states, “Although
the question ‘Do you agree or disagree with the verdict as stated?,’ in
retrospect, was not artfully crafted by court staff . . . the juror did not raise
any issue or concern in regard to the verdict[.]” Trial Court Opinion,
3/21/16, at 5. Thus, the lack of a transcript is not fatal to our review and
we shall address the merits.
We now examine whether Appellant waived this issue due to his failure
to object to the supposed lack of unanimity. A defendant is permitted by
Rule to poll the jury before the verdict is recorded. Pa.R.Crim.P. 648(G).
Our Supreme Court has explained the purpose of jury polling as follows:
The polling of the jury is the means for definitely determining,
before it is too late, whether the jury's verdict reflects the
conscience of each of the jurors or whether it was brought about
through the coercion or domination of one of them by some of
his fellow jurors or resulted from sheer mental or physical
exhaustion of a juror. Manifestly, the right is of especial
importance where a verdict carrying capital punishment has
been rendered.
Commonwealth v. Downey, 732 A.2d 593, 595 (Pa. 1999) (quoting
Commonwealth v. Martin, 109 A.2d 325, 328 (Pa. 1954)). As indicated,
polling must be timely conducted. In Downey, the trial court refused the
defendant’s request to poll the jury after the court announced that the
verdict had been rendered but before the jury was released. Our Supreme
Court held that this was erroneous and awarded a new trial. In reaching this
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result, the Court noted that any request to poll is timely if made before the
jury is discharged. “Consistent with our established case law, we
understand Rule 1120(f) to require that a trial court entertain a motion to
poll the jury at any time prior to dispersal of that jury.” Id. at 595
(emphasis added).3
Applying these principles, we find that Appellant’s claim has been
waived. Unlike Downey, polling was conducted; Appellant simply maintains
that the juror’s answer was ambiguous. However, nothing prevented
Appellant from asking clarifying questions if he truly believed that the juror
did not agree with the verdict. Critically, Appellant also failed to object that
the verdict was not unanimous after the polling was conducted, which would
have given the trial court the opportunity to further question the juror.
Thus, asserting ambiguity at this stage in the proceeding comes far too late,
and the claim is waived.
Appellant’s second issue pertains to the pre-trial evidentiary ruling
granting the Commonwealth’s motion in limine. At issue was the
admissibility of the evidence that Appellant observed C.P. while she was
showering and sleeping. With respect to a pretrial ruling by a court as to the
admissibility of this evidence, the following standard of review applies:
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3
Rule 1120(f) was renumbered effective April 1, 2001.
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The admissibility of evidence is within the sound discretion of the
trial court, and we will not disturb an evidentiary ruling absent
an abuse of that discretion. Pennsylvania Rule of Evidence
404(b) provides that “[e]vidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order
to show action in conformity therewith.” Pa.R.E. 404(b)(1). Such
evidence may be admitted, however, if offered for a valid
purpose such as proving the existence of a common scheme,
establishing an individual's motive, intent, or plan, or identifying
a criminal defendant as the perpetrator of the offense charged.
See Pa.R.E. 404(b)(2)[.] In order for evidence of other criminal
activity to be admissible to establish a common scheme, two
conditions must be satisfied: (1) the probative value of the
evidence must outweigh its potential for prejudice against the
defendant, see Pa.R.E. 404(b)(3); and (2) “a comparison of the
crimes must establish a logical connection between them.”
Commonwealth v. Miller, 541 Pa. 531, 664 A.2d 1310, 1318
(1995).
Commonwealth v. Arrington, 86 A.3d 831, 842 (Pa. 2014) (some
citations omitted). The trial court held that the evidence estabilshed a
common plan or scheme. The Commonwealth points to the following facts in
support of upholding that determination:
Here, defendant’s act of invading C.P.’s privacy was very similar
to his rape of B.P. The incidents occurred less than three
months apart. The victims of both acts were minor girls and
sisters, who lived in the same house with their mother and had
the same relationship to defendant, their mother’s boyfriend.
Both acts occurred in their house and while the girls were in the
particularly vulnerable position of showering or shortly
thereafter. The evidence was admissible because it revealed
defendant’s plan of exploiting his access to B.P. and C.P. for
sexual gratification.
Commonwealth’s brief at 10-11. Appellant, on the other hand, highlights
that the similarities do not rise to the level of a distinctive signature. He
additionally notes that the other acts of viewing C.P. in the shower and
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sleeping established, at best, that Appellant was a voyeur, and thus the prior
acts do not constitute a common scheme of rape.
We find no error. In order to establish a common scheme, our cases
consider the degree of similarities between the prior acts and the crimes in
question. The non-exclusive set of circumstances we consider includes the
victims, acts, location, and any relationship to the accused.
Commonwealth v. O’Brien, 836 A.2d 966 (Pa.Super. 2003), is instructive.
Therein, we reversed a pre-trial order barring the Commonwealth from
introducing, in a prosecution for sexual assault of a minor, evidence
regarding O’Brien’s prior sexual assault convictions of two other victims.
The trial court denied the motion, holding that the acts were “not unlike the
facts and circumstances in many cases of sexual assaults against children.”
Id. at 969 (quoting trial court opinion). We reversed, finding that all the
victims shared similar characteristics, including race, age, location of crime,
and relationship to the defendant. We opined that the trial court failed to
consider the factual similarities of the incidents in their entirety. Id. at 970-
71.
Appellant’s argument in support of error advances the position
rejected by O’Brien, as he asserts the acts were not “so unusual and
distinct as to constitute a ‘signature’ probative of rape.” Appellant’s brief at
10. He relies on Commonwealth v. Elliot, 700 A.2d 1243 (Pa. 1997). In
Elliot, the accused was found guilty of first-degree murder, rape, and other
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charges. The defendant, along with Frank Nardone, took the victim to
Nardone’s apartment. Id. at 1247. When Nardone awoke the next
afternoon, he found the victim’s naked and battered body. After
determining she was dead, he called the police. The autopsy determined the
victim had been raped and strangled. Id. The defendant gave a statement
to police, in which he claimed he had consensual sex with the victim the
evening of her murder and that she was alive when he left her. Id. The
Commonwealth introduced evidence from three prior assaults committed by
the defendant against women who, like the victim, were white women in
their twenties, and had been choked or beaten. Our Supreme Court upheld
the introduction of this evidence under the common scheme theory, but
suggested that the theory applied only where the “crimes are so related that
proof of one tends to prove the others.” Id. at 1249.
Elliot is distinguishable, because in that case the prior acts were
introduced to establish identity of the perpetrator, while B.P. directly
identified Appellant. A higher degree of similarity between crimes is
required when the purpose of the prior crimes is to establish the accused
committed the distinctive acts for which he stands trial. Here, however, B.P.
testified that Appellant committed the rape. Thus, the prior acts were used
to bolster the credibility of B.P.’s account. O’Brien explained the
distinction:
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We agree with the Commonwealth that [two cases cited by
O’Brien] are distinguishable from the instant matter. In those
cases, the relevance of that evidence was to be used to identify
the perpetrator, while here the admission of the evidence of the
prior crimes was relevant to establish a common scheme, plan or
design and, thus, bolster the victim's credibility.
Id. at 970 (footnote omitted).
We also reject Appellant’s claim that, since the other acts did not
culminate in rape, it cannot fall under the common scheme umbrella.
Nothing in our Rule 404(b) precedents suggests that the other acts must be
at least as serious as the charged offenses. This point is demonstrated by
Commonwealth v. Dunkle, 602 A.2d 830 (Pa. 1992), in which our
Supreme Court addressed the admissibility of prior sexual misconduct
between the defendant and the victim:
We do not believe that the appellee had to engage in the same,
exact sexual misconduct for which he was charged in order for
the testimony to be admissible. Rather, the testimony
concerning his misconduct was admissible to show that the
appellee's sexual misconduct was of a continuing and escalating
nature. McCormick on Evidence states that prior sexual
misconduct with the victim is admissible “[t]o show a passion or
propensity for illicit sexual relations with the particular person
concerned in the crime on trial.” McCormick, Evidence § 190, at
449 (2d ed. 1972). The Courts of the Commonwealth have
previously relied on this section of that treatise as authoritative.
Id. at 839. While Dunkle concerns prior bad acts committed against the
same victim, that fact was obviously not dispositive. O’Brien, supra;
Commonwealth v. Luktisch, 680 A.2d 877 (Pa.Super. 1996) (defendant’s
biological daughter permitted to testify about sexual abuse in prosecution for
abuse against stepdaughter).
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Applying the foregoing precedents, we do not find that the court
abused its discretion. The relationship of Appellant to the two minor girls is
exactly the same, as both were daughters of his girlfriend. Part of the other
acts involved Appellant watching C.P. shower, and the instant rape occurred
immediately after B.P. showered. Thus, the evidence suggested a
continuum of behavior involving various degrees of sexual gratification
concerning B.P. and C.P. We therefore find no abuse of discretion in
admitting this evidence.
Next, we address Appellant’s argument that the trial court improperly
prevented him from cross-examining C.P. regarding her alleged use of
drugs. On cross-examination, Appellant stated, “If they [Philadelphia
Children’s Alliance]4 said that you were using marijuana, Ecstasy, and
prescription pills,” at which point the Commonwealth objected. Appellant
argues that the trial court erroneously sustained the objection.
We disagree. The law is clear that evidence of drug use is admissible
only if it is relevant to some event related by the witness.
While this Court has consistently held that “intoxication on the
part of a witness at the time of an occurrence about which he
has testified is a proper matter for the jury's consideration,”
Commonwealth v. Small, 559 Pa. 423, 741 A.2d 666, 677
(1999) (citations omitted), the jury should not consider for
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4
The record indicates that Philadelphia Children’s Alliance and the
Department of Health and Services interviewed C.P., presumably due to
these crimes.
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impeachment purposes the use of drugs or alcohol at other
irrelevant times.
Commonwealth v. Harris, 852 A.2d 1168, 1174 (Pa. 2004) (emphasis in
original). Herein, there is no indication whatsoever that the victim was
under the influence at any time relevant to her testimony. Instead,
Appellant sought to introduce this evidence to generally besmirch C.P.’s
character. The trial court properly ended that line of inquiry.
Appellant’s fourth issue claims that the trial court improperly seated
five jurors: numbers five, nine, ten, eleven, and twelve. He suggests that all
of these jurors should have been struck for cause, but develops no argument
whatsoever to support that allegation with the exception of juror number
ten. We could find waiver on this basis, but decline to do so as our
discussion of juror number ten requires us to set forth the principles that
apply to all of his challenges.
Jurors should be disqualified for cause where “they do not have the
ability or willingness to eliminate the influences under which they are
operating and therefore cannot render a verdict according to the evidence.”
Commonwealth v. Robinson, 864 A.2d 460, 489 (Pa. 2004). The decision
to disqualify a juror on these grounds “rests within the sound discretion of
the trial court, must be based upon the juror's answers and demeanor, and
will not be reversed in the absence of a palpable abuse of this discretion.”
Id. at 489 (citation omitted). Thus, the decision to accept or deny removal
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for cause obviously depends on the issue being brought to the court’s
attention in the first place. “The challenge of a juror for cause is addressed
to the trial judge, and much weight must be given to his judgment in
passing upon it.” Id. at 490.
Turning to juror number ten, Appellant suggest that the trial judge has
a duty to sua sponte remove a juror for cause when the judge knows the
juror. Herein, the judge informed the parties of their limited relationship,
stating that he and the juror had litigated a medical malpractice case against
each other prior to the judge’s election. The juror stated that the past
relationship would have no bearing on his ability to serve as a fair and
impartial juror. Additionally, counsel asked the judge if the two socialized,
to which the trial court said no. Appellant then accepted the juror. While
the fact a juror “has such a close relationship . . . with the . . . court” is a
reason to grant a challenge for cause, Robinson, supra at 489-90,
Appellant cites no authority for the proposition that a trial court may
somehow interfere with strategic decisions for accepting or rejecting a juror.
Thus, we find that since Appellant accepted juror number ten, he has
waived any claim that the court improperly seated him. The same applies to
juror numbers five, eleven, and twelve, all of whom he accepted without
moving to strike for cause. N.T. Jury Selection, 5/20/13, at 43, 119, 127.
Relatedly, Appellant maintains that the trial court improperly permitted
juror number nine to serve. Unlike the jurors discussed supra, Appellant did
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move to strike this juror for cause, which the court denied. Appellant’s
counsel stated, “I still have a motion for cause, if not, I’m going to use a
[peremptory] strike.” Id. at 103. The trial court denied the motion for
cause with explanation. Id. at 103-04. Appellant’s counsel then stated,
“After conferring with my client, we’re going to accept.” Id. at 104.
Appellant has failed to address the effect of this action and why he has not
forfeited any allegation of error respecting the failure to strike this juror.
See Commonwealth v. Frazier, 369 A.2d 1224, 1231, n.4 (Pa. 1977) (“It
is difficult to understand how a party can object to the acceptance of a juror
where that party possessed peremptory challenges and failed to exercise
them.”). We therefore deem this claim forfeited.
Appellant’s fifth argument claims that the trial court improperly
permitted the jury to receive a transcript of the Commonwealth’s expert
witness’s testimony. Appellant has failed to distinguish the expert’s report
from her testimony, as explained by the trial court’s opinion:
Defendant's fifth issue on appeal is a clear misrepresentation of
the proceedings and inaccurately refers to several exhibits
admitted into evidence. This issue is without basis and should be
dismissed on appeal, as this Court did not permit the jury to
receive a transcript of the trial testimony of Dr. Maria McColgan,
the Commonwealth's medical expert witness, as doing so would
clearly violate Pa.R.Crim.P 646(C).
To the contrary, this Court, with defendant's counsel's consent
and agreement, did permit the jury to review a redacted copy of
Dr. McColgan's expert report during their deliberations. This
instance arose from Juror Question #2 "We would like to see two
Commonwealth exhibits; the medical expert and the report of
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the forensic interview form, PCA." N.T., 05 -23 -2103, P. 4, L. 4
-8. After reviewing this question with both defense counsel and
counsel for the Commonwealth, the following discussion occurred
out of the jury's presence:
....
No error was committed by this Court, nor was any alleged error
raised by defendant's counsel at the time. To the contrary,
counsel stipulated on the record to the evidence to be reviewed
by the jury during its deliberations.
Trial Court Opinion, 3/21/16, at 15-18. We agree. Since counsel for both
parties and the trial court jointly agreed to provide the exhibits, and
Appellant consented to that action, the trial court did not err. Compare
Commonwealth v. Woodard, 129 A.3d 480 (Pa. 2015) (discussing
submission of expert reports to the jury for deliberation where defense
counsel objects).
Appellant’s sixth issue grandly asserts that the Commonwealth
“orchestrated the proceedings by a deliberate deception of the court and
jury[.]” He cites Brady v. Maryland, 373 U.S. 83 (1963), but does not link
those principles to any inaction or action by the Commonwealth. Instead,
Appellant’s argument is a variation of the argument discussed infra: that the
absence of physical trauma meant that no rape occurred. “From (ALL THE
EVIDENCE ON THE RECORD), an (U[N]BIAS[ED] TRIER of FACTS) Would See
That The District Attorney Was Orchestrating The Proceedings.” Appellant’s
brief at 23. This undeveloped and unsubstantiated argument results in
waiver. See Commonwealth v. Freeman, 128 A.3d 1231, 1249
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(Pa.Super. 2015) (“[Appellant] has made no effort whatsoever to discuss the
applicable law or to link the facts of his case to that law. His failure to
develop a coherent legal argument in support of his claim results in waiver
of this issue.”).
We now discuss Appellant’s challenge to the sufficiency of the
evidence. Appellant claims that the lack of physical trauma renders the rape
“physically impossible,” Appellant’s brief at 26, and that any conviction was
based on mere conjecture. Whether the evidence is sufficient to support the
conviction presents a matter of law; our standard of review is de novo and
our scope of review is plenary. Commonwealth v. Walls, 144 A.3d 926,
931 (Pa.Super. 2016) (citation omitted). In conducting our inquiry, we
examine whether the evidence admitted at trial, and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, support the
jury's finding of all the elements of the offense beyond a
reasonable doubt. The Commonwealth may sustain its burden by
means of wholly circumstantial evidence.
Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015). Herein, the
victim testified that Appellant followed her after a shower, touched her
vagina with his penis, and inserted his penis into her anus. This testimony
clearly satisfies the elements of the rape by forcible compulsion offense.
Commonwealth v. Gonzalez, 109 A.3d 711, 720 (Pa.Super. 2015) (“The
Crimes Code defines rape in pertinent part as follows: “A person commits a
felony of the first degree when the person engages in sexual intercourse
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with a complainant . . . by forcible compulsion.”). Contrary to Appellant’s
argument, physical trauma is not an element of the crime. See
Commonwealth v. Minerd, 753 A.2d 225 (Pa. 2000) (Commonwealth
permitted to present, in its case-in-chief, expert testimony that lack of
physical trauma does not disprove rape is permissible in Commonwealth’s
case-in-chief; jurors may naturally expect physical trauma). Moreover, the
victim’s testimony standing alone is sufficient to convict. “A rape victim’s
uncorroborated testimony to penal penetration is sufficient to establish
sexual intercourse and thus support a rape conviction.” Commonwealth v.
Wall, 953 A.2d 581, 583 (Pa.Super. 2008). Accordingly, sufficient evidence
supported the rape verdict.
Appellant also purports to challenge the weight of the evidence. He
largely repeats the same argument presented in connection with his
sufficiency claim. Specifically, he maintains that the lack of physical trauma
renders rape impossible, and highlights the following testimony presented at
trial in his defense. Appellant’s coworker testified that Appellant was at
work on January 3, 2012, the date supplied to Officer Johnson by B.P. as the
date of the crime. Appellant also introduced a copy of B.P.’s mother’s lease,
which showed that the family had moved from their residence in late 2011.
Therefore, in addition to rape being “physically impossible”, Appellant urges
us to find that this evidence is conclusive proof that the rape could not have
occurred at the mother’s house in January of 2012.
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Appellant properly preserved this issue in a post-sentence motion and
the trial court addressed the claim. Commonwealth v. Stiles, 143 A.3d
968, 980 (Pa.Super. 2016) (“[A] defendant must present his challenge to
the weight of the evidence to the trial court for a review in the first
instance.”). The trial court rejected the claim, finding that the jury weighed
all of this testimony and that the verdict was not so contrary as to shock
one’s sense of justice. In reviewing this conclusion, we do not review the
underlying weight of the evidence claim; instead, we review the judge’s
exercise of discretion in ruling on the claim. “Appellate review of a weight
claim is a review of the exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the evidence.”
Commonwealth v. Smith, 146 A.3d 257, 264–265 (Pa. Super. 2016)
(citation omitted).
We discern no such abuse of discretion. To the extent Appellant’s
argument regarding the specific date of the crime goes to weight, and not
sufficiency, the Commonwealth is not required to establish the precise date
in general, but must “fix the date when an alleged offense occurred with
reasonable certainty[.]” Commonwealth v. Jette, 818 A.2d 533, 535
(Pa.Super. 2003) (citation omitted). Thus, the Commonwealth is given
some leeway in general, and that principle applies with even greater force
when the victim is a child.
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When a young child is a victim of crime, it is often impossible to
ascertain the exact date when the crime occurred. He or she
may only have a vague sense of the days of the week, the
months of the year, and the year itself. If such children are to be
protected by the criminal justice system, a certain degree of
imprecision concerning times and dates must be tolerated.
Luktisch, supra at 880 (quoting Commonwealth v. Groff, 548 A.2d 1237,
1242 (Pa.Super. 1988)). Accordingly, the trial court committed no abuse of
discretion in denying the weight claim.
Finally, we agree that Appellant is entitled to relief on his sentencing
claim. He received a mandatory minimum sentence pursuant to 42 Pa.C.S.
§ 9718, which was subsequently declared unconstitutional by Wolfe, supra.
While the trial judge imposed a sentence higher than the mandatory
minimum, the court’s sentencing scheme may be disrupted. Hence, we
vacate judgment of sentence at all counts and remand for resentencing.
Judgment of sentence is vacated and the matter is remanded for
resentencing. Appellant’s convictions are affirmed in all other respects.
Jurisdiction relinquished.
Judge Moulton joins the memorandum.
President Judge Emeritus Stevens files a concurring memorandum in
which Judge Bowes joins.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2017
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