Com. v. Toro, A. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ALFREDO TORO :
:
Appellant : No. 1918 EDA 2019
Appeal from the Judgment of Sentence Entered February 26, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003230-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALFREDO TORO :
:
Appellant : No. 1919 EDA 2019
Appeal from the Judgment of Sentence Entered February 26, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003231-2016
BEFORE: PANELLA, P.J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED DECEMBER 21, 2021
Appellant, Alfredo Toro, appeals from the judgments of sentence
following his conviction of rape by forcible compulsion, sexual assault,
unlawful restraint, defiant trespass, recklessly endangering another person
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* Retired Senior Judge assigned to the Superior Court.
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(“REAP”), and two counts of simple assault.1 We reverse Appellant’s
convictions of REAP and unlawful restraint, affirm his remaining convictions,
and remand for resentencing.
On December 19, 2015, Estrella Colon and Manuel Sanchez, who were
engaged to be married, called Appellant, Ms. Colon’s cousin, to help them
move from their second-floor apartment on the 3400 block of Helen Street in
Philadelphia. When Appellant arrived, he got into an altercation with Mr.
Sanchez and slapped and punched Mr. Sanchez in the face. Appellant chased
Mr. Sanchez out onto the street, and sometime later Appellant returned and
knocked on the front door of the building. Ms. Colon opened the door to the
apartment building thinking Mr. Sanchez had returned and Appellant then
pushed his way into the building and into Ms. Colon’s apartment. Once inside
the apartment, Appellant pushed, grabbed, and kissed Ms. Colon, and offered
her $200 to have sex with him, which she refused. Despite Ms. Colon’s efforts
to push him away, Appellant pulled Ms. Colon’s pants down and penetrated
her vagina with his penis. Appellant then fled from the apartment and the
police arrived shortly thereafter.
Appellant was charged at two docket numbers: at CP-51-CR0003230-
2016 (“3230-2016”), he was charged with rape by forcible compulsion, sexual
assault, unlawful restraint, defiant trespass, REAP, and simple assault of Ms.
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118 Pa.C.S. §§ 3121(a)(1), 3124.1, 2902(a)(1), 3503(b)(1)(i), 2705, and
2701(a), respectively.
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Colon. At CP-51-CR0003231-2016 (“3231-2016”), Appellant was charged
with simple assault of Mr. Sanchez. Appellant proceeded to a non-jury trial at
both dockets, which took place on May 8 and December 5, 2018. At the
conclusion of the trial, the trial court convicted him of all counts.
On February 26, 2019, the trial court imposed an aggregate sentence of
14½ to 29 years at 3230-2016, consisting of consecutive terms of
imprisonment of 10 to 20 years on the rape count, 2½ to 5 years on the
unlawful restraint count, 1 to 2 years on the REAP count, and 1 to 2 years on
the simple assault count.2 The trial court imposed a further consecutive
sentence of 1 to 2 years of imprisonment on the simple assault conviction at
3231-2016. On March 1, 2019, Appellant filed timely post-sentence motions
at both dockets. Both motions were denied by operation of law, and Appellant
filed timely notices of appeal in each matter.3
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2 The trial court imposed no further penalty on the sexual assault and defiant
trespass counts.
3 In 3231-2016, Appellant filed his notice of appeal prior to the trial court’s
denial of the post-sentence motion by operation of law on February 18, 2020.
However, we treat the premature notice of appeal as having been filed after
the denial of the post-sentence motion. See Commonwealth v. Cooper, 27
A.3d 994, 1007-08 (Pa. 2011) (holding that, pursuant to Pa.R.A.P. 905(a)(5),
trial court is not deprived of jurisdiction to resolve post-sentence motion
despite premature notice of appeal and that appeal is perfected upon the trial
court’s resolution of post-sentence motion); see also Commonwealth v.
McGarry, 172 A.3d 60, 63 n.1 (Pa. Super. 2017).
Appellant filed his Pa.R.A.P. 1925(b) concise statements on August 20, 2019
and supplemental concise statements on November 25, 2019. The trial court
issued an opinion on February 12, 2020.
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Appellant raises nine issues in this appeal. At 3230-2016, Appellant
challenges the sufficiency of the evidence of each of his six convictions. He
also argues that the verdict in 3260-2016 was against the weight of the
evidence. Finally, Appellant argues that the trial court abused its discretion
at both dockets by imposing manifestly excessive sentences without
consideration of mitigating evidence and his rehabilitative needs.
Sufficiency of the Evidence
A challenge to the sufficiency of the evidence presents a question of law
and is subject to plenary review under a de novo standard. Commonwealth
v. Smith, 234 A.3d 576, 581 (Pa. 2020). When reviewing the sufficiency of
the evidence, we must determine whether the evidence admitted at trial and
all reasonable inferences drawn therefrom, viewed in the light most favorable
to the Commonwealth, were sufficient to prove every element of the offense
beyond a reasonable doubt. Id.“[T]he facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence.” Commonwealth v. Wallace,
244 A.3d 1261, 1274 (Pa. Super. 2021) (citation omitted). “The
Commonwealth may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial evidence.”
Wallace, 244 A.3d at 1274 (citation omitted). As an appellate court, “we
may not weigh the evidence and substitute our judgment for that of the fact-
finder.” Id. (citation omitted).
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Appellant first argues that there was insufficient evidence to prove that
he committed the offenses of rape by forcible compulsion and sexual assault.
With respect to the rape conviction, Appellant argues that a “careful reading
of the testimony [] indicates that Appellant [] did not have sexual intercourse
with Ms. Colon, by forcible compulsion or otherwise.” Appellant’s Brief at 26.
Appellant contends that Ms. Colon testified only that Appellant put his penis
on or near her vagina, but she did not state his penis penetrated her vagina.
With respect to the sexual assault conviction, Appellant likewise asserts that
Ms. Colon’s testimony does not establish that sexual intercourse occurred. Id.
at 29-30.
The offense of rape by forcible compulsion is committed “when the
person engages in sexual intercourse with a complainant . . . [b]y forcible
compulsion.” 18 Pa.C.S. § 3121(a)(1). An individual commits the offense of
sexual assault if he “engages in sexual intercourse or deviate sexual
intercourse with a complainant without the complainant’s consent.” 18
Pa.C.S. § 3124.1. Sexual intercourse is defined in relevant part to include
intercourse in “its ordinary meaning . . . with some penetration however slight;
emission is not required.” 18 Pa.C.S. § 3101. “The ‘ordinary meaning’ of
sexual intercourse is not defined in the statute, but it refers to penetration of
the vagina by the penis.” Commonwealth v. Brown, 711 A.2d 444, 450
(Pa. 1998).
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While Ms. Colon’s initial testimony with respect to the sexual contact
between herself and Appellant was ambiguous,4 the assistant district attorney
asked Ms. Colon to demonstrate to the court the nature of the contact using
her hands, and Ms. Colon indicated in this manner that Appellant’s penis
penetrated her vagina.5 Furthermore, on cross and redirect examination, Ms.
Colon testified unequivocally regarding the penetration:
[Defense counsel:] And when the prosecutor approached and you
put your fingers inside, you said that [Appellant] penetrated your
vagina with his penis; is that correct?
[Ms. Colon:] Yes, sir.
...
[Defense counsel:] Today you talked about [how Appellant’s]
penis went inside of your vagina.
You were penetrated, correct?
[Ms. Colon:] Yes, sir.
...
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4 Ms. Colon first stated that appellant “took his penis out and went there,
towards my vagina.” N.T., 5/7/18, at 23. Upon further questioning about the
contact, she stated that “[h]e put it there” and “[h]e put it right on my private
parts.” Id.5 The assistant district attorney described Ms. Colon’s demonstration as
follows:
Indicating, for the record, that Ms. Colon is taking her left hand, and
she’s putting a piece of her middle finger inside of my V, indicating
penetration in the vagina.
N.T., 5/7/18, at 25-26.
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[Assistant district attorney:] So is it fair to say that your
testimony remains that you felt his penis enter your vagina but
not all [the] way into your vagina?
[Ms. Colon:] Yes, ma’am.
[Assistant district attorney:] But it still penetrated you, correct?
[Ms. Colon:] Yes, ma’am.
N.T., 5/7/18, at 46, 52, 61; see also id. at 53, 60. In addition, Ms. Colon
indicated that, as a result of Appellant’s actions, she suffered pain in her
vagina. Id. at 25, 54.
We conclude that Ms. Colon’s testimony was sufficient evidence to show
that Appellant’s penis penetrated her vagina, thereby satisfying the sexual
intercourse element of the rape and sexual assault offenses. 18 Pa.C.S. §
3101; Brown, 711 A.2d at 450; see also Commonwealth v. Gonzalez, 109
A.3d 711, 721 (Pa. Super. 2015) (in a sexual assault case, “[t]he victim’s
uncorroborated testimony is sufficient to support a rape conviction”).
Appellant next argues that there was insufficient evidence to convict him
of defiant trespass. “A person commits [defiant trespass] if, knowing that he
is not licensed or privileged to do so, he enters or remains in any place as to
which notice against trespass is given by . . . actual communication to the
actor[.]” 18 Pa.C.S. § 3503(b)(1)(i). To establish a violation of this offense,
the Commonwealth was required to show that Appellant “1) entered or
remained upon property without a right to do so; 2) while knowing that he
had no license or privilege to be on the property; and 3) after receiving direct
[] notice against trespass,” in the form of an actual communication.
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Commonwealth v. Namack, 663 A.2d 191, 194 (Pa. Super. 1995)
(emphasis omitted). This offense thus includes a scienter element requiring
that the offender have knowledge that he was not permitted on the subject
property. Id. “A person acts knowingly with respect to a material element of
an offense when[,] if the element involves the nature of his conduct or the
attendant circumstances, he is aware that his conduct is of that nature or that
such circumstances exist[.]” 18 Pa.C.S. § 302(b)(2)(i).
Appellant argues that, because Mr. Sanchez and Ms. Colon invited him
to their home on December 19, 2015 to help them move, the Commonwealth
did not prove that Appellant was given direct notice that he was not allowed
in their home or that he had knowledge that he was not permitted to enter.
Appellant’s Brief at 31. As Appellant points out, the record was clear that he
was initially an invitee to the second-floor apartment shared by Ms. Colon and
Mr. Sanchez to assist them in moving. N.T., 5/7/18, at 13-14, 65-66.
However, once he arrived, Appellant immediately confronted Mr. Sanchez,
chasing him around the apartment and pushing him. Id. at 14-17, 38. Mr.
Sanchez then exited the apartment, ran downstairs, and through the front
door of the apartment onto the street while Appellant continued to chase and
strike Mr. Sanchez. Id. at 16, 39.
Ms. Colon locked the door of the apartment building and returned to her
apartment while the altercation continued outside. Id. at 17. At some point
later she heard a knock on the front door of the building, which she assumed
to be Mr. Sanchez. Id. at 18-19, 40-41. However, upon descending the
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stairs, she discovered that it was in fact Appellant at the front door. Id. at
19. Ms. Colon described these events at trial as follows:
It was [Appellant at the door], and he wanted to come in the
building, in the house, and I said no, he had to leave.
Instead, he blocked the door with his foot and pushed himself in
the house and followed me up the steps, pinching my ass. Then
I went to close the door from the apartment, and he pushed the
door open, where I ended up sitting on the [wheel]chair the way
he pushed me.
Id. at 19 (emphasis added). On cross-examination, Ms. Colon further
testified:
[Defense counsel:] And you go down and answer the door,
thinking it’s [Mr. Sanchez], right?
[Ms. Colon:] Yes, sir.
[Defense counsel:] And you open the door and you see that it’s
[Appellant]?
[Ms. Colon:] Yes, sir.
[Defense counsel:] Okay. And you tell him to get lost, that
he can’t come inside, right?
[Ms. Colon:] Yes, sir.
[Defense counsel:] Okay. And he sticks his foot in the door
and doesn’t allow you to close the door, correct?
[Ms. Colon:] Yes, sir.
[Defense counsel:] And so then you turn and begin to walk back
up to the second floor apartment, right?
[Ms. Colon:] Yes, sir.
[Defense counsel:] Okay. And you testified that [Appellant]
followed you up the steps, right?
[Ms. Colon:] Yes, sir.
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Id. at 41 (emphasis added).
We find that Ms. Colon’s testimony provided sufficient evidence to
establish each of the elements of defiant trespass. When Appellant returned
to the apartment building after his initial altercation with Mr. Sanchez, Ms.
Colon advised Appellant that “he had to leave” and that he could not come
inside. Id. at 19, 41. Therefore, Ms. Colon gave Appellant “direct [] notice”
that he was not permitted to leave through an “actual,” verbal communication.
18 Pa.C.S. § 3503(b)(1)(i); Namack, 663 A.2d at 194. The Commonwealth
also demonstrated the second element of the offense—that Appellant “entered
or remained upon property without a right to do so”—as Ms. Colon testified
that after she advised him that he could not enter, Appellant “blocked the door
with his foot and pushed himself in the” apartment building. Namack, 663
A.2d at 194; N.T., 5/7/18, at 19, 41. In addition, Appellant followed Ms. Colon
up the steps, and he pushed the door open and entered the apartment as Ms.
Colon was attempting to shut him out. N.T., 5/7/18, at 19, 41.
Finally, as to the scienter element, the trial court, as fact-finder, could
fairly infer that Appellant “kn[ew] that he [was] not licensed or privileged” to
re-enter the apartment based upon the fact that Ms. Colon locked the door
after Appellant initially attacked Mr. Sanchez and chased him onto the street
and that Ms. Colon advised him upon his return that she did not want him to
come inside. 18 Pa.C.S. § 3503(b)(1)(i). While Appellant places great
emphasis on the fact that he was invited to the apartment earlier in the
evening, we are persuaded that the evidence establishes that Ms. Colon
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communicated to Appellant that he could not re-enter and that Appellant was
aware that he was not permitted to do so. The fact that Appellant was
required to use force to enter the apartment building and apartment, after
being told not to, only underscores that he knew he had no license or privilege
to enter. Cf. Commonwealth v. Majeed, 694 A.2d 336, 338 (Pa. 1997)
(“His very method of entry—kicking in the door, twice—further evidences that
his license or privilege to enter the premises had expired.”). Appellant is
therefore not entitled to relief on his sufficiency challenge to the defiant
trespass conviction
We next address Appellant’s challenge to his conviction for simple
assault of Ms. Colon.6 Appellant argues that the record is devoid of evidence
that he caused or attempted to cause bodily injury to Ms. Colon. Appellant’s
Brief at 32. We disagree.
“[A] person is guilty of assault if he . . . attempts to cause or
intentionally, knowingly or recklessly causes bodily injury to another.” 18
Pa.C.S. § 2701(a). “Bodily injury” is defined by statute as “[i]mpairment of
physical condition or substantial pain.” 18 Pa.C.S. § 2301. “The
Commonwealth need not establish the victim actually suffered bodily injury;
rather, it is sufficient to support a conviction if the Commonwealth establishes
an attempt to inflict bodily injury.” Commonwealth v. Martuscelli, 54 A.3d
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6 As stated previously, Appellant does not contest his conviction of simple
assault of Mr. Sanchez at 3231-2016.
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940, 948 (Pa. Super. 2012). “This intent may be shown by circumstances,
which reasonably suggest that a defendant intended to cause injury.” Id.
Here, the evidence adduced at trial demonstrates that when Appellant
forced his way into Ms. Colon’s apartment, he pushed the door open causing
her to fall back onto her wheelchair. N.T., 5/7/18, at 19, 23. Ms. Colon
testified that, once in the apartment, Appellant repeatedly pushed, grabbed,
and kissed her, which alarmed her and led her to scream for help. Id. at 20-
21, 23, 41-42, 47. Ms. Colon stated that Appellant also swatted her phone
out of her hand as she attempted to call 9-1-1, causing the phone to break.
Id. at 20, 45. In addition, the parties stipulated at trial that Officer Joseph
Hodge of the Philadelphia Police Department would have testified consistent
with the domestic violence report that he prepared that Ms. Colon told him on
the night of the incident that Appellant pushed, shoved, grabbed, threatened,
imprisoned, and sexually abused her. N.T., 12/5/18, at 7-8; Commonwealth
Ex. 4.
While Ms. Colon did not testify that she sustained bodily injury, the trial
court was permitted to infer that Appellant had intent to cause her bodily
injury through his actions. Martuscelli, 54 A.3d at 948. Moreover, Ms. Colon
testified that Appellant’s penetration of her vagina with his penis caused her
pain for which she was prescribed pain killers by her family doctor. N.T.,
5/7/18, at 25, 54-55. Therefore, we conclude that the Commonwealth
sufficiently proved that Appellant committed the offense of simple assault
against Ms. Colon.
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Appellant next challenges the sufficiency of his unlawful restraint
conviction. “[A] person commits [the offense of unlawful restraint] if he
knowingly . . . restrains another unlawfully in circumstances exposing him to
risk of serious bodily injury[.]” 18 Pa.C.S. § 2902(a)(1). Appellant argues
that the Commonwealth did not meet its burden on this offense because
“[t]here is no testimony whatsoever, from Ms. Colon, that [Appellant]
restrained her in any way.” Appellant’s Brief at 28.7
The evidence reveals that Appellant pushed his way through the front
door of both Ms. Colon’s apartment building and her apartment despite being
advised that he was not permitted to enter. N.T., 5/7/18, at 19, 41. When
Appellant entered her apartment, the act of opening the door pushed her back
onto her wheelchair, and he then began “grabbing [her] and pushing [her]
and trying to pull [her] pants down,” holding her down for a period sufficient
to rape her. Id. at 19-21, 23-26. Appellant also locked the door behind him
when he entered and swatted Ms. Colon’s phone out of her hands in order to
prevent her from calling 9-1-1. Id. at 19-20, 45. Additionally, Appellant
stipulated that Officer Hodge would have testified that Ms. Colon told him that
Appellant “imprisoned” her. N.T., 12/5/18, at 7-8; Commonwealth Ex. 4. On
this record, we conclude that the Commonwealth proved that Appellant
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7 We note that Appellant does not challenge whether the Commonwealth
presented sufficient evidence concerning the “serious bodily injury” element
of the unlawful restraint offense. 18 Pa.C.S. § 2902(a)(1).
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restrained Ms. Colon, and therefore we find no merit to the sufficiency
challenge to his unlawful restraint conviction.
Finally, Appellant argues that the Commonwealth did not present
sufficient evidence that he committed REAP. “A person commits [REAP] if he
recklessly engages in conduct which places or may place another person in
danger of death or serious bodily injury.” 18 Pa.C.S. § 2705. To sustain a
REAP conviction, the Commonwealth must prove that the defendant “(1)
possessed ‘a mens rea [of] recklessness,’ (2) committed a wrongful deed or
guilty act (‘actus reus’), and (3) created by such wrongful deed the danger of
death or serious bodily injury to another person.” Commonwealth v.
Brockington, 230 A.3d 1209, 1215 (Pa. Super. 2020) (citation omitted).
Appellant challenges the third element of the REAP offense, arguing that
Ms. Colon’s testimony did not show that he placed her in danger of death or
serious bodily injury. Appellant’s Brief at 33. Serious bodily injury is defined
as “[b]odily injury which creates a substantial risk of death or which causes
serious, permanent disfigurement, or protracted loss or impairment of the
function of any bodily member or organ.” 18 Pa.C.S. § 2301. “[T]he
Commonwealth must prove that the defendant had an actual present ability
to inflict harm and not merely the apparent ability to do so. Danger, not
merely the apprehension of danger, must be created.” Commonwealth v.
Headley, 242 A.3d 940, 944 (Pa. Super. 2020) (citation omitted); see also
Commonwealth v. Shaw, 203 A.3d 281, 284 (Pa. Super. 2019).
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Upon our thorough review of the record, we agree with Appellant that
the Commonwealth did not place Ms. Colon “in danger of death or serious
bodily injury.” 18 Pa.C.S. § 2705. The record establishes that Appellant
knocked Ms. Colon back onto her wheelchair when he opened the door, and
then kissed, grabbed, and pushed her, and swatted her phone out of her hand.
N.T., 5/7/18, at 19-21, 23, 41-42, 45, 47. Appellant then pulled Ms. Colon’s
pants down and sexually assaulted her. Id. at 20-21, 23-26, 45-46, 52-54,
61-62. While Appellant’s actions were certainly offensive, Appellant did not
“create[] a substantial risk of death or [] serious, permanent disfigurement,
or protracted loss or impairment of the function of any bodily member or
organ.” 18 Pa.C.S. § 2301. Ms. Colon did not offer any testimony indicating
that she sustained a serious bodily injury or felt that she was in danger of
dying or being seriously injured. Nor did she testify as to any injury sustained
from Appellant’s actions aside from the pain caused by his penis penetrating
her vagina. N.T., 5/7/18, at 25, 54.
Although no actual injury is required to sustain a REAP conviction, the
Commonwealth must prove that the defendant’s actions had “an actual
present ability to inflict” substantial bodily injury on the defendant. Headley,
242 A.3d at 944 (citation omitted); see, e.g., Commonwealth v. Rahman,
75 A.3d 497, 502-03 (Pa. Super. 2013) (defendant created risk of serious
bodily injury by throwing punches at police officer on the balcony of city
council chambers that could have caused the officer to tumble down the stairs
or over the balcony). Here, we fail to discern such a risk of serious bodily
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injury from Appellant’s actions of grabbing, pushing, groping, and sexually
assaulting Ms. Colon.8 Moreover, although Appellant stated that if she did not
have sex with him, her “mom was going to hear about it and the media was
going to hear about it, and my mom could die,” N.T., 5/7/18, at 26, Appellant
did not in fact threaten to commit a violent act on Ms. Colon’s mother or on
Ms. Colon herself. Accordingly, while the testimony was sufficient to show
that Appellant intended to cause Ms. Colon bodily injury which was required
to prove the simple assault offense, we cannot agree that the Commonwealth
proved that he “created by [his] wrongful deed[s] the danger of death or
serious bodily injury” to Ms. Colon. Brockington, 230 A.3d at 1215; cf.
Commonwealth v. Moody, 441 A.2d 371, (Pa. Super. 1982) (defendant’s
actions of forcing 12-year-old girl into cellar, groping her, and striking her to
prevent her from leaving did not place victim in sufficient physical danger to
support REAP conviction); Commonwealth v. Scruggs, No. 3116 EDA 2019
(Pa. Super. filed May 10, 2021), 2021 WL 1854726, at *4 (defendant
grabbing, groping, holding in place, and attempting to pull down victim’s pants
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8 We note that, while Ms. Colon reported to Officer Hodge that Appellant
pushed, shoved, grabbed, threatened, and imprisoned her, she specifically
denied to the Officer that Appellant engaged in actions of punching, throwing
objects, slapping, choking, biting, stabbing, hair pulling, kicking, or use of a
weapon. N.T., 12/5/18, at 7-8; Commonwealth Ex. 4.
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did not create a substantial risk of serious bodily injury necessary to sustain
REAP conviction).9 We therefore reverse Appellant’s REAP conviction.
For the foregoing reasons, we reverse Appellant’s REAP conviction and
affirm his convictions for rape by forcible compulsion, sexual assault, unlawful
restraint, defiant trespass, and simple assault of Ms. Colon.
Weight of the Evidence
We next address Appellant’s weight-of-the-evidence argument with
respect to his remaining convictions at 3230-2016. In arguing that the trial
court abused its discretion by not finding that the verdict was against the
weight of the evidence, Appellant cites inconsistencies between Ms. Colon’s
trial testimony and her prior statements to Detective Carl Diaz that Appellant
had offered her $1,000 to have sex with him, not the $200 she testified to at
trial. N.T., 5/7/18, at 49-51. Appellant also asserts that Ms. Colon told the
detective that Appellant’s “penis was on my vagina” and “[h]e was trying to
get it in,” but she “fought him and wouldn’t let him get it in,” id. at 53, which
is contrary to her trial testimony that Appellant’s penis actually penetrated her
vagina. In addition, Appellant points to the fact that Appellant’s DNA was
excluded from swabbed samples taken by police from Ms. Colon’s person
following the incident. N.T., 12/5/18, at 50-51. Appellant argues that this
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9Although an unreported decision, we cite to Scruggs for its persuasive value.
See Pa.R.A.P. 126(b) (non-precedential Superior Court decisions filed after
May 1, 2019 may be cited for their persuasive value).
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countervailing evidence renders his convictions so unreliable that they were
nothing more than mere conjecture.
We are guided by the following principles when reviewing a claim that
the verdict is against the weight of the evidence. “The weight of the evidence
is exclusively for the finder of fact, who is free to believe all, none or some of
the evidence and to determine the credibility of witnesses.” Commonwealth
v. Clemens, 242 A.3d 659, 667 (Pa. Super. 2020) (citation omitted). A
verdict will only be reversed as against the weight of the evidence where the
evidence is “so tenuous, vague and uncertain that the verdict shocks the
conscience of the court.” Commonwealth v. Akhmedov, 216 A.3d 307, 326
(Pa. Super. 2019) (en banc) (citation omitted). The fact-finder is charged
with the responsibility to resolve contradictory testimony and questions of
credibility, and we may not substitute our judgment in place of the fact-finder.
Commonwealth v. Cramer, 195 A.3d 594, 600 (Pa. Super. 2018).
A motion for a new trial based on a weight-of-the-evidence claim is
addressed to the discretion of the trial court, and therefore we review only the
lower court’s exercise of discretion and not the underlying question of whether
the verdict is against the weight of the evidence. Wallace, 244 A.3d at 1276.
When reviewing a trial court’s determination on a weight claim, we give the
“gravest consideration to the findings and reasons advanced by the trial
judge” because it is the trial judge, not the appellate court, that had the
opportunity to see and hear the evidence presented. Id. (citation omitted).
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In addressing Appellant’s weight-of-the-evidence argument, the trial
court stated as follows:
The Court listened to all of the testimony and observed the
demeanor of the witnesses. As was within its province, this Court
believed that Appellant forced himself into the victim’s apartment
before he raped her. The Court credited the victim’s testimony
and did not find Appellant’s testimony to be credible. Therefore,
this Court did not palpably abuse its discretion by denying
Appellant’s post-sentence motion for a new trial based on the
weight claim.
Trial Court Opinion, 2/12/20, at 16.
We discern no abuse of discretion in the trial court’s denial of the weight-
of-the-evidence claim. Both of the inconsistencies between Ms. Colon’s
testimony and her recorded statement with Detective Diaz were addressed on
cross-examination, with Ms. Colon explaining that she in fact told the detective
that Appellant offered her $200 for sex and that she informed the detective
that Appellant’s penis did penetrate her vagina, but he was not successful in
fully penetrating her. N.T., 5/7/18, at 51-53, 60-62. As fact-finder, the trial
court acted wholly within its discretion in finding Ms. Colon credible and
resolving any discrepancies between Ms. Colon’s earlier statements to police
and her trial testimony in favor of the Commonwealth. Cramer, 195 A.3d at
600. Furthermore, while Appellant’s DNA was found to not be present on the
samples taken from Ms. Colon, this evidence “does not necessarily exculpate”
Appellant, particularly in a case such as this where the sexual contact was
brief. Commonwealth v. Wall, 953 A.2d 581, 586 (Pa. Super. 2008).
Therefore, the trial court was entitled to “entertain [Appellant’s] alternative
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theory and reasonably reject it.” Id. (rejecting weight-of-the-evidence claim
where testing of sperm stain on victim’s underwear did not match the
defendant’s DNA, reasoning that while the testing “could establish a plausible
alternative theory that contradicts [the victim’s] testimony[,] . . . it does not
require the conclusion that [the defendant] did not rape [the victim]”). We
therefore find Appellant’s weight-of-the-evidence argument lacks merit.
Sentence
In his final two issues, Appellant challenges the discretionary aspects of
his sentence at both dockets. Appellant contends that his sentences for rape
by forcible compulsion and the two counts of simple assault were at the
statutory maximum10 and that his sentence for unlawful restraint exceeded
the aggravated range of the sentencing guidelines and was also at the
statutory maximum. Appellant argues that—in light of the mitigating evidence
that he presented related to his mental and physical health issues, his
advanced age, and his unstable upbringing—the trial court’s imposition of
statutory maximum punishments at each count was manifestly excessive.
A challenge to the discretionary aspect of a sentence is not appealable
as of right. 42 Pa.C.S. § 9781(b); Akhmedov, 216 A.3d at 328.
Rather, an appellant challenging the sentencing court’s discretion
must invoke this Court’s jurisdiction by (1) filing a timely notice of
appeal; (2) properly preserving the issue at sentencing or in a
____________________________________________
10Appellant also argues that he was sentenced at the statutory maximum with
respect to his REAP sentence. However, as we have vacated this conviction,
we do not address this argument.
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motion to reconsider and modify the sentence; (3) complying with
Pa.R.A.P. 2119(f), which requires a separate section of the brief
setting forth “a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a
sentence[;]” and (4) presenting a substantial question that the
sentence appealed from is not appropriate under the Sentencing
Code[.]
Akhmedov, 216 A.3d at 328 (citation omitted). Only once the appellant has
satisfied each of the four requirements to invoke our jurisdiction will we
proceed to review the merits of the discretionary sentencing issue under an
abuse of discretion standard. Id. at 328-29.
In this case, Appellant filed a timely notice of appeal, and he included a
Rule 2119(f) statement in his brief. However, as the Commonwealth points
out in its brief, Appellant did not properly raise his sentencing claims in his
post-sentence motions. The post-sentence motions provide simply that the
trial court “committed an abuse of discretion” in imposing the sentence
without any further elaboration. Post-Sentence Motion, 3230-2016, 3/1/19,
¶5; Post-Sentence Motion, 3231-2016, 3/1/19, ¶3. Appellant did not
reference the trial court’s purported oversight of mitigating evidence or the
alleged manifest excessiveness of his sentence in his post-sentence motions.
“To properly preserve an issue challenging the discretionary aspects of
sentencing, a defendant must object and request a remedy at sentencing, or
raise the challenge in a post-sentence motion.” Commonwealth v. Clary,
226 A.3d 571, 579 (Pa. Super. 2020). Failure to preserve a discretionary
sentencing issue before the trial court results in waiver. Commonwealth v.
Smith, 206 A.3d 551, 567 (Pa. Super. 2019). The purpose of this rule is to
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provide the trial court with the opportunity to address the sentence either at
sentencing or when ruling on a post-sentence motion. Commonwealth v.
Tejada, 107 A.3d 788, 798 (Pa. Super. 2015).
Here, because Appellant did nothing more than raise a generalized claim
of an abuse of discretion in his post-sentence motions and did not assert the
arguments he actually raises in this appeal, Appellant failed to adequately
preserve his discretionary sentencing claims. Therefore, these arguments are
waived and not properly before us in this appeal. Smith, 206 A.3d at 567.
For the foregoing reasons, we affirm Appellant’s convictions of rape by
forcible compulsion, sexual assault, unlawful restraint, defiant trespass, and
simple assault at 3230-2016 and simple assault at 3231-2016, and we reverse
Appellant’s REAP conviction at 3230-2016. Because our ruling in this appeal
upsets the trial court’s sentencing scheme at 3230-2016, we vacate
Appellant’s sentence and remand for resentencing of the remaining counts on
that docket. See Commonwealth v. Vela-Garrett, 251 A.3d 811, 819 (Pa.
Super. 2021) (determining that this Court’s vacating of a sentence imposed
to run consecutively to other sentences upset the trial court’s overall
sentencing scheme and therefore remand for resentencing was required).
Conviction of recklessly endangering another person at 3230-2016
reversed; all other convictions at 3230-2016 affirmed. Judgment of sentence
in 3230-2016 vacated. Judgment of sentence in 3231-2016 affirmed. Case
remanded for resentencing consistent with this memorandum at 3230-2016.
Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/21/2021
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