Com. v. Alvarado, C. ( 2023 )

J-S09011-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARLOS RAFAEL ALVARADO :
:
Appellant : No. 1000 WDA 2022
Appeal from the Judgment of Sentence Entered May 26, 2022
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0004894-2018
BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: MAY 8, 2023
Appellant, Carlos Rafael Alvarado, appeals from the aggregate judgment
of sentence of 2½ to 5 years’ incarceration, followed by 2 years’ probation,
imposed after he was convicted of criminal attempt - photographing,
videotaping, depicting on computer or filming sexual acts of a minor,1 invasion
of privacy,2 criminal attempt – invasion of privacy,3 tampering with or
fabricating physical evidence,4 possession of drug paraphernalia,5 and
____________________________________________
1 18 Pa.C.S. § 901(a); 18 Pa.C.S. § 6312(b)(2).
2 18 Pa.C.S. § 7507.1(a)(1).
3 18 Pa.C.S. § 901(a); 18 Pa.C.S. § 7507.1(a)(1).
4 18 Pa.C.S. § 4910(1).
5 35 P.S. § 780-113(a)(32).
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possession of marijuana.6 Appellant challenges the sufficiency of the evidence
to sustain several of his convictions. After careful review, we affirm.
The trial court summarized the facts of Appellant’s case as follows:
The charges in this case arose from an investigation into
allegations of screenshot photographs found on [Appellant’s]
computer depicting minor females in the restroom at his residence
in Greensburg, Westmoreland County[,] in April of 2018. The
evidence presented at the non[-]jury trial established that in April
of 2018, [the victim (a minor)] periodically resided with …
[Appellant], in a two-bedroom, two-bathroom duplex. [The
victim] testified that while she stayed with [Appellant], she had
her own bedroom and used the bathroom in the basement, while
[Appellant] had a separate bathroom in his master bedroom[,]
which he kept locked. In April of 2018, while [the victim] was
staying with [Appellant], she indicated that she and her friend
[K.C. (a minor)], used a key to unlock [Appellant’s] bedroom door
while he was out of the house. While in [Appellant’s] room, [the
victim] observed more than five screenshot photographs on
[Appellant’s] laptop of women’s rear-ends wearing underwear
standing in front of the toilet in her bathroom. According to [the
victim], the laptop was connected to [Appellant’s] television[,]
which was sitting on top of his dresser. Upon observing these
images, [the victim] stated that she and [K.C.] went to her
bathroom downstairs and discovered a phone sitting on top of the
inside of the trash can with the video recording active. [The
victim] indicated that the video recording was active for 13
minutes—the approximate[] time that [Appellant] had [been gone
from] the house. [The victim] testified that she stopped the
recording, and viewed the entire clip[,] observing [Appellant] set
the video up prior to leaving the house. [The victim] indicated
that she called her mother, and her mother informed her that she
was going to call the police.
When [Appellant] arrived back home, [the victim] testified that
she asked [him] what was on the phone, and he took the phone
out of her hand and “started deleting everything” before asking
her if she wanted to go to the mall. According to [the victim],
[Appellant] explained that, “[H]e was checking the lights because
____________________________________________
6 35 P.S. § 780-113(a)(31).
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the lights kept flickering on and off.” When testifying as to one
specific picture that she remembered seeing on [Appellant’s]
computer, [the victim] stated, “There’s no proof that it was me or
that [it] wasn’t me[], it’s just it was in my bathroom, so I feel like
it probably was.” [The victim’s] date of birth is December 12,
2002.
[K.C.] testified that on the date of the incident in April of 2018,
she stayed overnight with [the victim] at [Appellant’s] residence.
[K.C.] stated that she and [the victim] usually stayed in [the
victim’s] bedroom, and they used the bathroom downstairs.
[K.C.] indicated that on the following day, after [Appellant] left
the residence, [the victim] went into [Appellant’s] bedroom and
then called for [K.C.] to come into the room. Once inside the
room, [K.C.] testified that they looked at [Appellant’s]
computer[,] which was connected to the television[,] and saw
pictures of people from the bathroom that they use. Specifically,
in one photograph, [K.C.] indicated that she observed the side of
a female’s leg. After observing these pictures, [K.C.] stated that
she and [the victim] went downstairs to the bathroom and located
a camera device in the garbage can in the corner. [Although they
did] not examin[e] the photographs very closely, [K.C.] testified
that she was concerned seeing these photographs “[b]ecause I
could have been on, like, one of those pictures.” [K.C.’s] date of
birth is June 29, 2003.
Pennsylvania State Police Trooper Keith Sobecki testified relative
to his investigation in this case and the subsequent charges that
he filed against [Appellant]. Trooper Sobecki stated that the initial
investigation was reported to the state police patrol unit on April
28, 2018, at which time the victims were interviewed and a
ChildLine Investigation was started. Greensburg City Police also
started their own investigation, and forwarded their preliminary
stages of the investigation to the state police, who received the
case in May of 2018 for further investigation. After applying for
and securing a search warrant for [Appellant’s] residence, Trooper
Sobecki testified that he executed the warrant on May 11, 2018;
however, he did not locate a laptop computer or an iPhone in the
residence. The only electronic device that Trooper Sobecki located
was the television [sitting] on the dresser in [Appellant’s]
bedroom. [Appellant] elected not to testify at trial.
Trial Court Opinion (TCO), 10/7/22, at 1-3 (citations to the record omitted).
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After a non-jury trial, the court convicted Appellant of the above-stated
offenses. On May 26, 2022, the court sentenced him to the aggregate term
set forth supra. Appellant filed a timely notice of appeal, and he complied
with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal. The court filed its Rule 1925(a) opinion on
October 7, 2022. Herein, Appellant states four issues for our review:
I. Whether the trial court erred in finding sufficient evidence to
sustain a conviction at count 2, criminal attempt [- photographing,
videotaping, depicting on computer or filming sexual acts of a
minor], … when the manner in which the recording device was
situated would not have recorded K.C.[’s] engag[ing] in a
prohibited act or simulation of a prohibited act and would not have
recorded K.C. nude?
II. Whether the trial court erred in finding sufficient evidence to
sustain a conviction at count 3, invasion of privacy, … when there
were no images of [the victim] offered at trial?
III. Whether the trial court erred in finding sufficient evidence to
sustain a conviction at count 4, criminal attempt [- invasion of
privacy], … when the manner in which the recording device was
situated would not have recorded K.C. in a state of full or partial
nudity?
IV. Whether the trial court erred in finding sufficient evidence to
sustain a conviction at count 5, tampering with [or fabricating]
physical evidence, … when there was no evidence offered at trial
that [Appellant] removed any electronic devices believing that an
official proceeding or investigation is pending or about to be
instituted?
Appellant’s Brief at 4-5 (unnecessary capitalization omitted).
Initially, we observe that,
[w]hether the evidence was sufficient to sustain the charge
presents a question of law. Commonwealth v. Toritto, 67 A.3d
29 (Pa. Super. 2013) (en banc). Our standard of review is de
novo, and our scope of review is plenary. Commonwealth v.
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Walls, 144 A.3d 926 (Pa. Super. 2016). In conducting our
inquiry, we examine[,]
whether the evidence at trial, and all reasonable inferences
derived therefrom, when viewed in the light most favorable
to the Commonwealth as verdict-winner, [is] sufficient to
establish all elements of the offense beyond a reasonable
doubt. We may not weigh the evidence or substitute our
judgment for that of the fact-finder. Additionally, the
evidence at trial need not preclude every possibility of
innocence, and the fact-finder is free to resolve any doubts
regarding a defendant’s guilt unless the evidence is so weak
and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. When
evaluating the credibility and weight of the evidence, the
fact-finder is free to believe all, part or none of the evidence.
For purposes of our review under these principles, we must
review the entire record and consider all of the evidence
introduced.
Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super.
2014) (quotation omitted).
Commonwealth v. Rojas-Rolon, 256 A.3d 432, 436 (Pa. Super. 2021),
appeal denied, 285 A.3d 879 (Pa. 2022).
Here, Appellant first challenges the sufficiency of the evidence to sustain
his conviction for criminal attempt - photographing, videotaping, depicting on
computer or filming sexual acts of a minor. “A person commits an attempt
when, with intent to commit a specific crime, he does any act which constitutes
a substantial step toward the commission of that crime.” 18 Pa.C.S. § 901(a).
Section 6312(b)(2) states:
(b) Photographing, videotaping, depicting on computer or
filming sexual acts.--
***
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(2) Any person who knowingly photographs, videotapes,
depicts on computer or films a child under the age of 18
years engaging in a prohibited sexual act or in the
simulation of such an act commits an offense.
18 Pa.C.S. § 6312(b)(2). A “prohibited sexual act” includes “nudity if such
nudity is depicted for the purpose of sexual stimulation or gratification of any
person who might view such depiction.” 18 Pa.C.S. § 6312(g).
Appellant argues that the evidence was insufficient to sustain his
conviction for this offense because,
[i]n the case at bar, all of the images, alleged to have been viewed
by [the victim] and K.C., did not depict anyone engaged in a
prohibited act or simulation of an act. Further, all of the images,
alleged to have been viewed by [the victim] and K.C., did not
depict anyone nude. In the images [the victim] viewed, the
women were not naked but were wearing underwear. K.C.
testified that she only saw images of a woman’s leg. Therefore,
it follows that if the images [the victim] and K.C. viewed did not
depict anyone engaged in a prohibited act or simulation of an act
and did not depict anyone nude, that the way the recording device
was situated on the trash can would not have recorded K.C.
engaged in a prohibited act or simulation of a prohibited act and
would not have recorded K.C. nude.
Thus, the trial court erred in finding sufficient evidence to sustain
a conviction for [criminal attempt - photographing, videotaping,
depicting on computer or filming sexual acts of a minor].
Appellant’s Brief at 12-13 (formatting adjusted).
The Commonwealth’s responds to Appellant’s argument, contending
that it
can be distilled to this: because the Commonwealth did not prove
the completed crime of [photographing, videotaping, depicting
on computer or filming sexual acts of a minor, the
Commonwealth] did not prove an attempt to commit the same.
Of course, this is illogical and incorrect.
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The Commonwealth’s evidence, which the trial court credited,
demonstrated that [Appellant] secreted an iPhone camera in a
bathroom that [the victim] and her juvenile friend[, K.C.,] would
almost certainly have to use while he was gone. They were not
permitted to use another bathroom. [Appellant] angled the
camera so that it would capture the girls using the toilet, where
they would naturally have to unwittingly expose themselves to the
camera. Whether or not [Appellant] had previously recorded
these girls in the bathroom and retained those videos on his
computer, the evidence unmistakably demonstrates that
recording the girls nude was his intention when he [left his
residence].
Further, [Appellant’s] immediate deletion of the evidence of his
conduct, and the apparent subsequent removal of all electronic
devices from his home, demonstrate[s] his own consciousness of
guilt. The suggestion that “the way the recording device was
situated on [sic] the trash can … would not have recorded K.C.
nude,” Appellant’s Brief at 13, is belied by the record. If that were
correct, he would not have needed to delete the evidence[,] which
could have [ostensibly] established his innocence.
The evidence was sufficient to sustain the conviction at Count 2.
Commonwealth’s Brief at 6-7 (emphasis added). We agree with the
Commonwealth. Therefore, Appellant’s first issue is meritless.
Next, Appellant challenges the sufficiency of the evidence to sustain his
conviction for invasion of privacy. That offense is defined as follows:
(a) Offense defined.--Except as set forth in subsection (d), a
person commits the offense of invasion of privacy if he, for the
purpose of arousing or gratifying the sexual desire of any person,
knowingly does any of the following:
(1) Views, photographs, videotapes, electronically depicts,
films or otherwise records another person without that
person’s knowledge and consent while that person is in a
state of full or partial nudity and is in a place where that
person would have a reasonable expectation of privacy.
18 Pa.C.S. § 7507.1(a)(1).
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Aside from defining the at-issue offense, Appellant’s entire argument in
support of his second issue is the following two sentences:
In the case at bar, there were no images of [the victim] offered at
trial[,] nor was [the victim], able to identify herself in the images
she testified to seeing on [Appellant’s] computer.
Thus, the trial court erred in finding sufficient evidence to sustain
a conviction at Count 3.
Appellant’s Brief at 14.
Appellant’s cursory argument is unconvincing, as we again find the
Commonwealth’s counter-argument much more persuasive:
When she and K.C. discovered the images on [Appellant’s]
computer, [the victim] “was terrified at the moment.” Looking for
a “camera down there that [she] didn’t know about,” [the victim]
went to her bathroom without looking closely at the thumbnails
on [Appellant’s] computer and without clicking on any of the
videos to watch what they showed. [The victim] could not exclude
herself as the female in the “thong,” saw nothing that would allow
her to say it wasn’t her, and believed that it was based upon the
photo being taken in her own bathroom. [The victim’s]
explanation for why she believed herself to have been one of, or
the only, female recorded in her bathroom was consistent with the
other evidence and testimony in the case, consistent with common
sense, and obviously credited by the trial court.
***
In addition, the verdict[] [was] supported by the inference
permitted by [Appellant’s] conduct. Of course, no photographs or
videos were presented as evidence; despite the credible testimony
of [the victim] and K.C. of their existence, all electronic devices
capable of retaining or recording such media had been removed
from [Appellant’s] home between his confrontation [by the victim]
and the execution of a search warrant there. Instead of being
supportive of [Appellant’s] appeal, [it was permissible for the trial
court to utilize] the absence of this evidence … as creating an
inference that [Appellant] was conscious of his guilt.
Commonwealth v. Paddy, 800 A.2d 294, 319 (Pa. 2002)
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[(“[A]ttempts by a defendant to suppress evidence are admissible
to demonstrate his or her consciousness of guilt.”)] ((citing
Commonwealth v. Johnson, 668 A.2d 97, 106 (Pa. 1995)).
Commonwealth’s Brief at 8-9 (citations to the record omitted).
We agree with the Commonwealth that the circumstantial evidence in
this case was sufficient to permit the court, as the fact-finder, to infer that at
least some of the photographs viewed by the victim and K.C. depicted images
of the victim. It is understandable that the victim was reluctant to closely
examine the photographs to discern whether they were pictures of her,
considering that if so, it would mean she was being covertly filmed by
Appellant, whom she trusted, while using the bathroom in her own home.
Moreover, the fact that the victim and K.C. both testified that the photographs
they saw were images of females in a state of undress, taken in the only
bathroom in the house that the victim was permitted to use, was sufficient for
the court to infer that Appellant had recorded the victim in a state of full or
partial nudity in a place where she had a reasonable expectation of privacy.
Thus, Appellant’s second issue is meritless.
In Appellant’s third issue, he alleges that the evidence was insufficient
to support his conviction for criminal attempt – invasion of privacy. According
to Appellant,
[a]ll of the images, alleged to have been viewed by [the victim]
and [K.C.], did not depict anyone nude. In the images [the victim]
viewed, the women were not naked but were wearing underwear.
K.C. testified that she only saw images of a woman’s leg. In the
instant case, the way the recording device was situated on the
trash can would not have recorded K.C. in a state of full or partial
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nudity. The trial court erred in finding sufficient evidence to
sustain a conviction at [c]ount 4.
Appellant’s Brief at 14-15 (formatting adjusted).
Again, Appellant’s brief argument is meritless. The fact that the victim
and K.C. did not see any photographs of women nude is irrelevant to whether
Appellant attempted to commit invasion of privacy. Appellant hid a cell
phone in the bathroom pointed at the toilet, and began recording at a time
when he knew that the victim and K.C. were in the home and that the only
bathroom they could use was the one in which he had placed the camera.
This evidence was sufficient to show that Appellant attempted to photograph
or film K.C. without her knowledge and consent while she was in a state of full
or partial nudity in a place where she would have a reasonable expectation of
privacy. Thus, his conviction for criminal attempt – invasion of privacy is
supported by sufficient evidence.
Finally, Appellant challenges the sufficiency of the evidence to sustain
his conviction of tampering with or fabricating physical evidence, which is
defined as follows:
A person commits a misdemeanor of the second degree if,
believing that an official proceeding or investigation is pending or
about to be instituted, he:
(1) alters, destroys, conceals or removes any record,
document or thing with intent to impair its verity or
availability in such proceeding or investigation; or
18 Pa.C.S. § 4910(1).
Appellant’s entire argument in support of his fourth issue encompasses
the following paragraph:
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[Appellant] is accused of tampering with physical evidence, 18
P[a.C.]S[. §] 4910(1). Trooper Sobecki made contact with
[Appellant] two or three days before he executed the search
warrant. Trooper Sobecki testified that the only electronic device
he found from [Appellant’s] residence was a television. There was
no evidence offered at trial that [Appellant] removed any
electronic devices believing that an official proceeding or
investigation is pending or about to be instituted. Thus, the trial
court erred in finding sufficient evidence to sustain a conviction at
count 5.
Appellant’s Brief at 15 (citations to the record and unnecessary capitalization
omitted; formatting adjusted).
In rejecting Appellant’s sufficiency claim, the trial court explained that,
[d]espite no direct physical evidence that [Appellant] removed
any electronic devices believing that an official proceeding or
investigation was pending or about to be pending [for] the crimes
charges, the court finds that there is circumstantial evidence of
guilt and consciousness of guilt through [Appellant’s] actions.
Testimony established that [the victim] confronted [Appellant]
with the phone that was used to record, and he took the phone
from her and began deleting things before attempting to change
the subject. The police were called, and a subsequent
investigation followed. Trooper Sobecki’s testimony established
that [aside from] the television, no other electronic devices were
found in the residence during the execution of the search warrant.
The court finds that guilt of tampering with … physical evidence
may be inferred beyond a reasonable doubt.
TCO at 10 (unnecessary capitalization omitted).
The Commonwealth agrees with the court that Appellant’s claim is
meritless, arguing:
As recounted above, the trial court credited the testimony of [the
victim] and K.C., which clearly identified [Appellant] as having
been in possession of, at the least, a laptop computer with images
that came from [the victim’s] bathroom, as well as the iPhone he
took from [the victim’s] hand after she found the same in the
bathroom trash can. Consistent with his arguments in this appeal,
[Appellant] knew that the best evidence of his misdeeds could be
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found on those devices. [Appellant] began his tampering when
he deleted the video on the iPhone in front of [the victim]. The
fact that all electronic devices, with the sole exception of a
television, were removed from his residence before the police
came to search, further buttresses the belief that this evidence
was discarded in order to intentionally impair the availability of
this evidence for trial. Although his present reliance on the lack
of photographs and/or videos as evidence [of his innocence] does
not prove his conduct in April of 2018, it demonstrates most
effectively the motivation to have tampered with the evidence in
the first place.
Commonwealth’s Brief at 9-10.
We agree with the trial court and the Commonwealth that the evidence
was sufficient to support Appellant’s conviction. The victim and K.C. testified
that they saw a laptop with images on it, and they found a cell phone in the
victim’s bathroom. The victim testified that Appellant immediately began
deleting content from the cell phone when she confronted him, and that same
cell phone and the laptop computer were gone when the police later searched
Appellant’s residence. This evidence was sufficient circumstantial proof that
Appellant, believing that an investigation into his conduct was pending,
destroyed, concealed, or removed those electronic devices to prevent their
use in the investigation and/or prosecution of his crimes. Accordingly, the
evidence was sufficient to support his conviction of tampering with or
fabricating physical evidence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/8/2023
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