Com. v. Hernandez, D. ( 2024 )

J-S37019-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DIMAS OMAR HERNANDEZ :
:
Appellant : No. 2143 EDA 2023
Appeal from the Judgment of Sentence Entered November 29, 2022
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0002050-2020
BEFORE: BOWES, J., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY MURRAY, J.: FILED NOVEMBER 19, 2024
Dimas Omar Hernandez (Appellant) appeals from the judgment of
sentence imposed for his jury convictions of two counts each of involuntary
servitude, involuntary deviate sexual intercourse (IDSI), sexual assault, and
terroristic threats; and one count each of corrupt organizations, trafficking in
minors, criminal conspiracy (trafficking in minors), trafficking in individuals,
rape by forcible compulsion, kidnapping to facilitate a felony, kidnapping of a
minor, unlawful restraint, unlawful restraint of a minor (involuntary
servitude), and sexual exploitation of children. 1 Appellant’s counsel, Scott J.
Werner, Jr., Esquire (Counsel), has filed a petition to withdraw from his
____________________________________________
1 See 18 Pa.C.S.A. §§ 3012(a), 3123(a)(1), 3124.1, 2706(a)(1), 911(b)(3),
3011(b), 903, 3011(a)(1), 3121(a)(1), 2901(a)(2), 2901(a.1)(2),
2902(a)(2), 2902(b)(2), 6320(a).
J-S37019-24
representation of Appellant, and a brief pursuant to Anders v. California,
386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.
2009). After careful review, we grant Counsel’s petition to withdraw and
affirm Appellant’s judgment of sentence.
In May 2020, the Malvern Pennsylvania Police Department received a
report regarding the possible endangerment of A.M., a 14-year-old Maryland
girl. On May 28, 2020, A.M.’s mother contacted East Whiteland Township
Police Sergeant Patricia Doyle (Sgt. Doyle) and indicated that A.M. might be
found at a local Pennsylvania Wawa convenience store (Wawa) at 1:00 a.m.
During her surveillance of the Wawa, at around 1:20 a.m., Sgt. Doyle
observed an SUV driving behind the Wawa. Once the SUV parked behind the
Wawa, Sgt. Doyle saw a girl exit the SUV. The girl was dressed inappropriately
for the weather. At Sgt. Doyle’s request, the girl, A.M., entered Sgt. Doyle’s
police vehicle.
Police subsequently discovered that A.M. and another young woman,
E.A., had been involuntarily held and forced to engage in sexual activities with
paying customers. Police discovered that three men were engaged in the
operation: Appellant, Franklin Eduardo Rivera-Mendieta (Rivera-Mendieta),
and Josue Sibrian Sanchez (Sanchez).
Relevant to this appeal, following a jury trial of Appellant and Rivera-
Mendieta, Appellant was convicted of the above-described charges. Before
sentencing, the trial court ordered the preparation of a presentence
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investigation report. On November 29, 2022, the trial court sentenced
Appellant to an aggregate prison term of 35-70 years, with credit for time
served from June 4, 2020, through November 29, 2022. 2 Appellant filed a
timely post-sentence motion, which the trial court denied on March 13, 2023.
Throughout trial and post-sentence motions, Ryan Hyde, Esquire (Attorney
Hyde), represented Appellant.
On July 24, 2023, Appellant filed a pro se petition for allowance of direct
appeal nunc pro tunc.3 On July 27, 2023, the PCRA court granted the petition,
and permitted Appellant to file the instant direct appeal, nunc pro tunc.
Relevantly, on July 31, 2023, the trial court appointed Thomas Patrick
McCabe, Esquire (Attorney McCabe), to represent Appellant. On November
29, 2029, in lieu of a court-ordered Pa.R.A.P. 1925(b) concise statement of
issues for appeal, Attorney McCabe filed a statement of his intention to file a
petition to withdraw from representation and an Anders brief. See Pa.R.A.P.
1925(c)(4).
____________________________________________
2 Appellant was found to be a sexually violent predator.
3 We consider Appellant’s petition as a petition for relief under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. See
Commonwealth v. Fowler, 930 A.2d 586, 591 (Pa. Super. 2007) (“It is []
well-settled that the PCRA provides the sole means for obtaining collateral
review, and that any petition filed after the judgment of sentence becomes
final will be treated as a PCRA Petition.”) (citation and quotation marks
omitted).
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Attorney McCabe filed in this Court a petition to withdraw from
representation and an Anders Brief. However, because of Attorney McCabe’s
election to the Chester County Court of Common Pleas, the trial court granted
Attorney McCabe leave to withdraw and appointed Counsel to represent
Appellant in this appeal. On February 8, 2024, Counsel filed in this Court a
petition to withdraw from representation and an Anders brief.
On July 19, 2024, Appellant filed a pro se motion for compulsory
disclosure, discovery and inspection pursuant to Pa.R.Crim.P. 573. See
Pa.R.Crim.P. 573 (Pretrial Discovery and Inspection). On August 22, 2024,
this Court directed the trial court to provide the requested information to
Appellant and/or his counsel. Order, 8/22/24. The trial court complied. On
October 14, 2024, the trial court filed a statement indicating that Counsel
certified his compliance with the trial court’s directive. Trial Court Statement,
10/14/24, at 1.
Initially, we observe the following: “When presented with an Anders
brief, this Court may not review the merits of the underlying issue without
first passing on the request to withdraw.” Commonwealth v. Garang, 9
A.3d 237, 240 (Pa. Super. 2010) (citation omitted). Counsel seeking to
withdraw from representation must
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the defendant; and 3) advise the defendant that he
... has the right to retain private counsel or raise additional
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arguments that the defendant deems worthy of the court’s
attention.
Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en
banc). Pursuant to Santiago, counsel must also
(1) [p]rovide a summary of the procedural history and facts, with
citations to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set forth
counsel’s conclusion that the appeal is frivolous; and (4) state
counsel’s reasons for concluding that the appeal is frivolous.
Counsel should articulate the relevant facts of record, controlling
case law, and/or statutes on point that have led to the conclusion
that the appeal is frivolous.
Id. (citing Santiago, 978 A.2d at 361). Once counsel has complied with
these procedural requirements, we review the record and render an
independent judgment as to whether the appeal is wholly frivolous.
Commonwealth v. Yorgey, 188 A.3d 1190, 1197 (Pa. Super. 2018) (en
banc).
Our review discloses Counsel properly notified Appellant of Counsel’s
intention to withdraw, and of Appellant’s right to secure new counsel or raise
additional arguments pro se. The record further reflects Counsel furnished
Appellant with copies of his petition to withdraw and Anders
brief. The Anders brief summarizes the history of this appeal, and explains
Counsel’s reasons for concluding that the appeal is wholly frivolous. As
Counsel has satisfied the procedural requirements of Anders and Santiago,
we next review the record to determine whether Appellant’s appeal is wholly
frivolous.
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Counsel’s Anders Brief asserts the following issue in the statement of
questions involved: “Are there any non-frivolous issues preserved on appeal?”
Anders Brief at 4 (capitalization modified). In the argument section of the
Anders brief, counsel addresses issues challenging the sufficiency and weight
of the evidence underlying the verdicts, and a challenge to the discretionary
aspects of Appellant’s sentence. See id. at 16-20. Counsel concludes these
issues lack merit and are frivolous. Id. at 18, 20. Our review confirms
Counsel’s conclusions.
Regarding a challenge to the sufficiency of the evidence, our standard
of review is well settled:
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Commonwealth v. Juray, 275 A.3d 1037, 1042 (Pa. Super. 2022)
(quotation marks and citations omitted).
Appellant was convicted of two counts of involuntary servitude. Crimes
Code Section 3012 provides:
(a) Offense defined. — A person commits a felony of the first
degree if the person knowingly, through any of the means
described in subsection (b), subjects an individual to labor
servitude or sexual servitude, except where the conduct is
permissible under Federal or State law other than this chapter.
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(b) Means of subjecting an individual to involuntary
servitude. — A person may subject an individual to involuntary
servitude through any of the following means:
(1) Causing or threatening to cause serious harm to any
individual.
(2) Physically restraining or threatening to physically restrain
another individual.
(3) Kidnapping or attempting to kidnap any individual.
….
(5) Taking or retaining the individual’s personal property or
real property as a means of coercion.
(6) Engaging in unlawful conduct with respect to documents,
as defined in section 3014 (relating to unlawful conduct
regarding documents).
….
(9) Criminal coercion, as defined in section 2906 (relating to
criminal coercion).
(10) Duress, through the use of or threat to use unlawful force
against the person or another.
(11) Debt coercion.
(12) Facilitating or controlling the individual’s access to a
controlled substance.
(13) Using any scheme, plan or pattern intended to cause the
individual to believe that, if the individual does not perform
the labor, services, acts or performances, that individual or
another individual will suffer serious harm or physical
restraint.
18 Pa.C.S.A. § 3012.
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Appellant also was convicted of two counts of IDSI. The Crimes Code
defines the crime of IDSI, in relevant part, as follows:
(a) Offense defined.—A person commits a felony of the first
degree when the person engages in deviate sexual intercourse
with a complainant:
(1) by forcible compulsion ….
Id. § 3123(a)(1). IDSI requires that the defendant have committed “deviate
sexual intercourse,” which is defined as follows:
Subject to additional definitions contained in subsequent
provisions of this chapter, the following words and phrases when
used in this chapter shall have, unless the context clearly indicates
otherwise, the meanings given to them in this section:
***
“Deviate sexual intercourse.”—Sexual intercourse per os or per
anus between human beings and any form of sexual intercourse
with an animal. The term also includes penetration, however
slight, of the genitals or anus of another person with a foreign
object for any purpose other than good faith medical, hygienic or
law enforcement procedures.
Id. § 3101. “Sexual intercourse,” in addition to its ordinary meaning, includes
intercourse per os or per anus, with some penetration however slight;
emission is not required. Id. Both definitions require “some penetration,
however slight” of a complainant’s body. Id.; Commonwealth v.
Poindexter, 646 A.2d 1211, 1215 (Pa. Super. 1994). Thus, to sustain a
conviction for IDSI, the Commonwealth must establish that the perpetrator
engaged in acts of oral or anal intercourse, which involved some penetration,
however slight. Poindexter, 646 A.2d at 1215.
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Regarding Appellant’s two convictions of sexual assault, the Crimes
Code provides,
a person commits a felony of the second degree when that person
engages in sexual intercourse or deviate sexual intercourse with
a complainant without the complainant’s consent.
18 Pa.C.S.A. § 3124.1.
Regarding Appellant’s two convictions of terroristic threats, a person
commits the crime of terroristic threats “if the person communicates, either
directly or indirectly, a threat to … commit any crime of violence with intent
to terrorize another[.]” Id. § 2706(a)(1).
Appellant was convicted of one count each of the following offenses
defined below. The Crimes Code defines the crime of corrupt organizations,
in part, as follows:
It shall be unlawful for any person employed by or associated with
any enterprise to conduct or participate, directly or indirectly, in
the conduct of such enterprise’s affairs through a pattern of
racketeering activity.
Id. § 911(b)(3). Section 911 provides that racketeering activity includes
crimes related to human trafficking. Id. § 911(h)(1)(i).
The crimes of trafficking in individuals and trafficking in minors are
defined by the Crimes Code as follows:
(a) Offense defined. A person commits a felony:
(1) of the first degree if the person recruits, entices,
solicits, patronizes, advertises, harbors, transports,
provides, obtains or maintains an individual if the person
knows or recklessly disregards that the individual will be
subject to sexual servitude;
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….
(b) Trafficking in minors. Notwithstanding section 1103
(relating to sentence of imprisonment for felony), a person shall
be sentenced to a term of imprisonment fixed by the court at not
more than 40 years if:
(1) the person violates subsection (a)(1) or (2); and
(2) the violation:
(i) results in a minor being subjected to sexual servitude;
and
(ii) is part of a course of conduct subjecting minors to
sexual servitude.
Id. § 3011(a)(1), (b)(1)-(2).
A person is guilty of criminal conspiracy
with another person or persons to commit a crime if with the intent
of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one
or more of them will engage in conduct which constitutes
such crime or an attempt or solicitation to commit such
crime; or
(2) agrees to aid such other person or persons in the planning
or commission of such crime or of an attempt or solicitation
to commit such crime.
Id. § 903(a).
Regarding the crime of rape, the Crimes Code provides as follows: “A
person commits a felony of the first degree when the person engages in sexual
intercourse with a complainant …[b]y forcible compulsion.” Id. § 3121(a)(1).
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The Crimes Code defines the crimes of kidnapping and kidnapping of a
minor under Section 2901, which provides, in relevant part, as follows:
(a) Offense defined.— Except as provided in subsection (a.1), a
person is guilty of kidnapping if he unlawfully removes another a
substantial distance under the circumstances from the place
where he is found, or if he unlawfully confines another for a
substantial period in a place of isolation, with any of the following
intentions:
….
(2) To facilitate commission of any felony or flight thereafter.
….
(a.1) Kidnapping of a minor. — A person is guilty of kidnapping
of a minor if he unlawfully removes a person under 18 years of
age a substantial distance under the circumstances from the place
where he is found, or if he unlawfully confines a person under 18
years of age for a substantial period in a place of isolation, with
any of the following intentions:
….
(2) To facilitate commission of any felony or flight thereafter.
Id. § 2901(a)(2), (a.1)(2).
The crime of unlawful restraint is defined as follows: “[A] person
commits a misdemeanor of the first degree if he knowingly… holds another in
a condition of involuntary servitude.” Id. § 2902(a)(2). The crime of unlawful
restraint of a minor is defined as follows:
Unlawful restraint of a minor where offender is not victim’s
parent. — If the victim is a person under 18 years of age, a
person who is not the victim’s parent commits a felony of the
second degree if he knowingly:
….
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(2) holds another in a condition of involuntary servitude.
18 Pa.C.S.A. § 2902(b)(2).
Finally, a person commits the offense of sexual exploitation of children
“if he procures for another person a child under 18 years of age for the purpose
of sexual exploitation.” Id. § 6320(a).
With these definitions in mind, we review the evidence presented at
trial, in a light most favorable to the Commonwealth as verdict winner. Fairfax
County, Virginia, Police Officer Chase Briggs (Officer Briggs) testified that on
May 17, 2020, he was assigned as a school resource officer. N.T., 8/16/21,
at 206-07. At around 2:30 p.m., Officer Briggs received a call from a young
lady (the confidential informant or CI), who reported
that a friend of hers had been sending her some text messages
that she was concerned about, and she wanted a police officer to
do some sort of follow up with that. … [T]his [was] at the very
beginning of the [] COVID pandemic, so a supervisor designated
the call to be handled over the phone. So I then called the [CI]….
Id. Officer Briggs testified that he knew the CI was a minor. Id. at 208. He
continued:
I questioned [the CI] as to why she had been contacting the police
and what made her so worried to the point that she contacted the
police to have her friend checked on.
Id. The CI provided Officer Briggs with A.M.’s phone number and location.
Id. at 209-10.
As a result of this information, Officer Briggs
put that location into Google[ ]Maps, looked up what township or
county it was up [] in Pennsylvania. And then based on the other
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information that I was given by the [CI], … I felt that … a welfare
check was necessary to be done on the [] party that [the CI] …
called in about.
….
… I know the location was in … Malvern, Pennsylvania. So it was
the jurisdiction of the police department that covers Malvern,
Pennsylvania.
Id. at 210. According to Officer Briggs,
I spoke to a [local Pennsylvania] patrol officer that day about the
department going out to do a welfare check, and then I spoke to
that same officer after the welfare check was attempted.
Id. at 214. Officer Briggs testified that he
wrote up my report, and I sent a copy over to our gang intelligence
unit. … I provided them with that information about that report
that I had just taken.
Id.
Sgt. Doyle testified that she conducted the requested welfare check.
Sgt. Doyle reviewed the GPS location “pin drop” provided from the potential
victim’s phone. Id. at 224. She explained:
Within our patrolman’s report was information of a pin drop, which
means, essentially, if you have the location services [feature
activated] … on your phone, … you can show people where you
are. … You can pinpoint on a map – and that is why they call it
a pin drop. It shows … a little red pin on a map….
Id. at 224-25. Sgt. Doyle continued:
So that particular street address is a little strip mall, and there’s
a car rental place in there, as well as a nail shop, a restaurant,
and, I think, a mattress store.
….
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There’s a house, essentially, in a parking lot[ of] a car dealership.
And then … sort of diagonally, there is a trailer park that has about
70 trailers in it.
Id. at 225. According to Sgt. Doyle, the “pin drop” was at either 486 or 487
Lancaster Avenue, in close proximity to the car rental business. Id. at 226-
27. Sgt. Doyle confirmed that the house at that address is divided into
separate residential units. Id. at 227.
Sgt. Doyle testified that,
because of the information I received in the police report that I
read, there was an allegation of some gang … affiliation with this
person we were looking for, so I had an associate at the time who
specialized in gangs, and he was an agent for Homeland Security.
So I called him.
Id. at 228. Sgt. Doyle additionally learned that “the person we were looking
for, the person that dropped this pin[,] was a child by the name of [A.M.]”
Id. at 229. At that time (May 2020), A.M. was 14 years old. Id. at 230-31.
On May 28, 2020, A.M.’s mother contacted Sgt. Doyle. Id. at 234. As
a result of information received from A.M.’s mother, Sgt. Doyle contacted
Homeland Security Agent Craig.4 Id. According to Sgt. Doyle,
I contacted Agent Craig from Homeland Security, and I said, let’s
meet at the Wawa … at midnight[,] because I think [A.M.] is going
to be coming there at 1 a.m. … I didn’t know how [A.M.] was
getting there, who was bringing her, [or] where she was coming
from, so I wanted help.
____________________________________________
4 Agent Craig’s first name is not stated in the testimony.
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Id. (footnote added). The Wawa store was located within a couple of blocks
from the car rental business -- “within walking distance.” Id. at 235. Sgt.
Doyle testified that she arranged for other patrol officers to accompany her in
an unmarked vehicle. Id.
Sgt. Doyle testified that at around 1:20 a.m., Agent Craig reported a
yellow SUV “pull[ed] out of a residence west of the Wawa within walking
distance.” Id. at 236. The SUV traveled along Lancaster Avenue and turned
into the Wawa parking lot. Id. at 238. Sgt. Doyle observed that the SUV
parked in a parking space near her unmarked vehicle. Id. at 239. Two adults
emerged from the SUV, then reentered it and pulled out of the parking lot.
Id.
The SUV next drove behind the Wawa, at which time Sgt. Doyle
observed
a girl get out of the back of the SUV and she looked upset. …
[S]he was dressed inappropriately for the weather. She had on
slippers, and then I saw an adult get out of the car, and they
opened the back [of the SUV], and they were getting out …
luggage, [including] a suitcase and a couple bags….
Id. at 239-40. Sgt. Doyle testified:
So I get out of my car, and I’m not in a police uniform or
anything…. I get out of my car, and [call out A.M.’s name.] She
turns, and she looks at me. I was like, come here. … [S]he was
just looking at me. I grabbed my badge, and I held it up, and I
[stated], I’m here for your mom, come here, and she did. She
came over. She was crying. I told her to get in my car because
it was raining, and I took her things from these people, and I put
all of her things into my car. I told her to stay in the car, and I
quickly realized she didn’t understand what I was saying because
she didn’t speak any English.
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Id. at 240.
When Sgt. Doyle asked the individuals accompanying A.M. for
identification, they did not provide the correct information. Id. at 241. These
individuals stated that they saw A.M. walking along Lancaster Avenue and
picked her up. Id. at 242.
A.M. subsequently provided officers with two addresses where she had
been held involuntarily. Id. at 254. Sgt. Doyle cooperated with a Chester
County SWAT team and detectives to investigate the two residences. Id. at
245. A.M. informed Sgt. Doyle that she was taken “from one to the other
[residence] and that there was possibly another girl; at the one where [A.M.]
was no longer staying.” Id. During the course of the investigation, Sgt. Doyle
learned that Appellant lived at one of these residences. Id. at 262.
A.M. testified that she originally is from Guatemala, and lived there for
seven years. N.T., 8/17/22, at 326. A.M. explained that in May 2020, she
was 14 years old. Id. at 327. According to A.M., before traveling to
Pennsylvania, she was living with a friend in Maryland, and her mother lived
“close by to where I was living.” Id. at 328.
A.M. testified that in May 2020, she
was at a hotel with two friends, and they told me that they were
going to leave and go get a female friend.
….
So then they got back, and that’s how I met [a woman named]
Paola.
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Id. at 328-29. A.M. went to a party with Paola, Selvin5 (Paola’s boyfriend),
and Christian (Selvin’s friend). Id. at 329. After the party, A.M. exchanged
Snapchat messages with Paola. Id. Paola asked A.M. “if I wanted to work.”
Id. Paola did not identify the type of job to A.M. Id. at 330. A.M.
subsequently told Paola that “yes, I did want to work with her. And [Paola]
said, okay, and that she would come pick me up.” Id.
Paola and Rivera-Mendieta, who went by the alias, “Mono,” picked A.M.
up in Hyattsville, Maryland. Id. at 331; see also id. at 367-68 (A.M.
identifying Rivera-Mendieta as Mono). A.M. explained:
Well, [Paola and Rivera-Mendieta] got there, and then [Paola]
went with me to get my things. [Paola] accompanied me inside.
The friend that I was living with there, he went inside. So I got
my things. He stayed outside. And then my friend who I had
been living with made some [hand] signs at [Paola]. She saw th[e
hand signs] and returned them.
Id. According to A.M., she recognized the hand signs as gang signs from the
MS-13 gang. Id. At the time, A.M. was not aware of her friend’s gang
affiliation. Id. at 331-32. A.M. testified that Paola returned a gang sign from
“the 18th” street gang. Id. at 332.
A.M. testified that after the exchange of hand signs, a fight developed
between her friend and Paola, and her friend “went to get a knife.” Id. The
fight ended when Rivera-Mendieta left to get the car. Id. at 333. A.M.
____________________________________________
5 Selvin’s full name is not specified.
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testified that she was taken to a park with Rivera-Mendieta, Selvin and
Christian: “They took me into a forest area, and they were hitting me for 16
seconds.” Id. According to A.M., the men injured her on the side of her leg.
Id. at 334. Rivera-Mendieta and Paola told A.M. she “could not go home.”
Id. As a result, A.M. testified, “I felt bad. I felt scared, and I wanted to go
home.” Id.
Rivera-Mendieta transported A.M. from Maryland to a residence in
Malvern, Pennsylvania. Id. at 335. According to A.M., the next day, “we went
to buy food at Walmart, and we got there, [Paola] told me to go buy something
sexy to wear.” Id. at 336. A.M. testified, “I told her that I didn’t want to do
anything like that and that I wanted to go home.” Id. at 336-37. Paola
indicated she would discuss the matter with Rivera-Mendieta. Id. at 337.
When they returned to Rivera-Mendieta’s residence, A.M. testified, “I wrote [a
text message] to [the CI] and I told her that I was scared and that if anything
happened, she should call the police.” Id.
A.M. testified that, the same day, Appellant, known to A.M. as “Adonis,”
described her new “job.” Id. at 340. According to A.M., Appellant
took me into the bedroom, and he told me he was going to show
me how it was, how I should be, or how I should be with other
clients.
…
Well, he took his pants down, and me made me touch his parts….
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Id. at 340-41. A.M. explained that Appellant made her touch her mouth to
his penis. Id. at 341. A.M. testified Appellant “told me I had to.” Id.
Thereafter, A.M. and Appellant “had sex in the bed.” Id. A.M. explained she
“was scared because I didn’t want to do it, but [Appellant] said I had to do it
if I was going to be allowed to go home.” Id. at 342.
A.M. testified that she sent her friend in Maryland, the CI, a text
message, after which Paola “took my phone from me.” Id. at 338. Paola
informed A.M. that A.M. must ask for permission to send her current address
to anyone. Id. at 339. Paola and Appellant took A.M.’s phone, and forced
A.M. to send an audio message to the CI, “to tell her everything was okay and
that it had all been a misunderstanding.” Id. at 343. Afterwards, A.M. told
Paola, Rivera-Mendieta, and Appellant that she was 15 years old, although
she was only 14 years old at the time. Id. at 344.
Rivera-Mendieta subsequently took A.M. to an apartment above a
restaurant “to be with a customer.” Id. at 345. A.M. went upstairs to the
apartment, “and the [customer] was waiting for me up there.” Id. According
to A.M. the man paid money to Rivera-Mendieta. Id. A.M. described what
next transpired:
I went in and took off my clothes. I took my clothes off. He took
his clothes off, and he touched my vagina with his penis.
….
[The customer] didn’t say anything to me. He didn’t talk to me,
but [Rivera-Mendieta] – they told me that I had to be with the
people, but that I shouldn’t talk to them.
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Id. at 346. A.M. went to that apartment twice. Id. at 347. According to
A.M., she was told that “I had to do it or I wouldn’t get to go home quickly.”
Id. However, Rivera-Mendieta and Paola told A.M. she would not be allowed
to go home. Id. at 344. Afterwards, A.M. was told to bathe, because “we
were going to see two more customers.” Id. at 346.
Rivera-Mendieta and Paola took A.M. to a house to see two other clients.
Id. While there, A.M. met with a man and a woman. Id. at 348. The three
went into a bedroom, where A.M. “put my mouth on the woman’s vagina[,]”
and the man “touched me all over my chest.” Id.
A.M. testified that she subsequently lived at that house with two men
named Humberto and Sanchez. 6 Id. at 349. A.M. explained that clients came
to the residence every day. Id. at 355. According to A.M., in total, she
interacted with five or six clients. Id. Each had to pay Sanchez. Id. Further,
A.M. had to give any tips she received to Sanchez. Id. at 358. A.M. was told
to tell clients that she is 22 years old and that her name is “Daniella.” Id. at
355.
A.M. also testified regarding her use of a tablet computer. A.M.
explained that she went into the bedroom of Humberto, to use his tablet. Id.
A.M. explained that she had requested help from Humberto, and told him she
was “being forced to be there.” Id. A.M. asked Humberto for his assistance
____________________________________________
6 Sanchez, after entering a guilty plea, testified at trial.
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to contact her mother. Id. Humberto “told me not right now, but that another
day he could help me with that.” Id. Humberto later loaned his tablet to A.M.
to message her mother. Id. at 361. A.M. told her mother, “I didn’t want to
be here anymore.” Id. Humberto also told A.M. he would buy her a
telephone, “and leave it in a piece of furniture in his bedroom for me.” Id.
A.M. later contacted her mother using the telephone provided by Humberto.
Id. However, when Rivera-Mendieta observed A.M. leaving Humberto’s
bedroom, he struck A.M. in the eye with his fist. Id. at 360.
A.M. testified that she and Humberto subsequently planned for A.M.’s
escape:
[Humberto] told me that the next day, he would go buy us all
beers, and he was going to get everyone together there and that
I should take advantage of that to escape.
….
He told me to go out through his bedroom window.
Id. at 361-62. Humberto purchased beer the next day, at which time A.M.
attempted to escape. Id. at 362. A.M. testified:
I saw that everyone was in the living room, so I went into
Humberto’s bedroom. I grabbed the phone, and I went out
through his bedroom window.
….
I took off running, and when I turned around to look, I saw that
[Rivera-Mendieta] was behind me.
….
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… [Rivera-Mendieta] told me that I had to go back, that I wasn’t
allowed to leave. So I went back in through the window that I
went out of because I thought he could take me somewhere else.
Id. A.M. testified she feared Rivera-Mendieta would move her to another
location. Id. at 363.
Upon returning through the window, A.M. “asked Humberto to call the
police. And he said, no, it would be better if I told everyone who was there
the truth.” Id. Humberto called Sanchez and two clients into the bathroom,
at which time A.M. told them she was forced to be there and wanted to go
home. Id. The clients assisted A.M. with her suitcases and drove her to the
Wawa store described above. Id. at 364. A.M. thought her mother would be
at the Wawa waiting for her. Id. at 365.
A.M. testified that Rivera-Mendieta had threatened A.M. not to tell
clients of her circumstances, as they would report it back to him. Id. at 364.
A.M. also testified that Rivera-Mendieta once forced her to perform sex acts
with Humberto. Id. at 364-65. A.M. indicated that Rivera-Mendieta once
touched her vagina with his penis. Id. at 364-65. A.M. also testified that
Rivera-Mendieta “told me there was … another girl” working for him. Id. at
366. That other girl “was at the first apartment where I had been.” Id.
A.M. testified that Paola and Rivera-Mendieta took pictures of her with
a telephone. Id. at 366-67. In those photos, A.M. wore only her underwear.
Id. at 367. A.M. further testified that Rivera-Mendieta “told me once that if I
wanted to go back to Maryland, I’d have to kill my friend because he was a
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member of MS-13.” Id. A.M. was told that if she joined the 18th Street gang,
she would be allowed to leave. Id. at 383. A.M. was also told “I couldn’t go
home and that I should not try to escape.” Id. at 389.
The Commonwealth also presented the testimony of E.A., another
victim, who was born in November 2001. Id. at 391. E.A. testified that when
she was 17 years old, she moved to the United States from El Salvador. Id.
E.A. explained she moved in with her father, who was living in Virginia. Id.
at 392.
E.A. testified that in 2020, she spoke with a friend named Kimberly
through the application, Snapchat. Id. at 393. Kimberly stated she could
help E.A. find work. Id. E.A. thereafter spoke with Appellant on Snapchat.
Id. at 394. According to E.A., “we started talking about the work, which was
going to be working in a bar, and [Appellant] also talked about a massage
parlor.” Id. At that time, E.A. did not have papers to work legally in the
United States. Id. Although E.A. had requested a week to get her “affairs in
order[,]” Appellant sent someone to pick her up the next day. Id. at 395.
Appellant indicated that he “had everything all prepared. Like he had
apartments where there were rooms that I could rent while I was going to
work.” Id.
E.A. testified that Rivera-Mendieta and Sanchez picked her up and, on
February 17, 2020, transported her out of Virginia. Id. at 399. They took
E.A. to an apartment “where they sell cars[.]” Id. E.A. stated she waited at
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the apartment with Sanchez and another man. Id. at 400. According to E.A.,
she waited for Appellant to arrive. Id. Appellant subsequently took E.A.
shopping “to buy condoms and lube.” Id. at 403. After leaving the store,
Appellant took E.A. to a hotel “to show me what the job was, what I had to
do.” Id. at 404.
At the hotel, Appellant and E.A. began smoking marijuana. Id. at 405.
Appellant told E.A. to smoke a small, white rock “so that I could be able to
speak well with him about what I was going to have to do.” Id. E.A. testified,
“[h]e said that he was going to show me what I was going to have to do with
the clients.” Id. Appellant then “started to get naked.” Id. at 406. Appellant
told E.A. to remove her clothing. Id. When asked why she complied, E.A.
testified it was
because I was just one person there with him. I didn’t know what
he might have on him. He always used to say that he would carry.
He used to say that he was equipped. I didn’t know what that
meant. I didn’t know if equipped meant that he carried a weapon
or what. I didn’t know.
Id.
Appellant then engaged in involuntary sexual intercourse with E.A. Id.
at 407. E.A. stated, “I told him … that I didn’t want to.” Id. Appellant
penetrated E.A.’s vagina with his penis. Id. According to E.A., Appellant
responded, “I have to show you how because if I don’t, then the clients could
hurt you.” Id. This scared E.A. Id.
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Appellant also forced E.A. to have oral sex with him. Id. E.A. testified
this was not the type of work that she had agreed to perform in Pennsylvania.
Id. at 408.
Appellant brought E.A. back to the apartment. Id. E.A. testified that
she began seeing “clients” the next day. Id. at 409. She sometimes saw
clients at the apartment. E.A. testified that
clients would send [Sanchez] a message that they were outside.
They would come and wait at the door by the bathroom, and then
he would give them a ticket, and they would come in.
….
The ticket just had a time set limit on it, like 10 minutes, 20
minutes, 30 minutes, 40 minutes.
Id. at 416, 417. E.A. explained that the tickets were for sex with her. Id. at
420. Sanchez would keep track of the time and collect money from the clients.
Id. at 417. According to E.A., when Appellant “wasn’t around, [Rivera-
Mendieta] would take me.” Id. at 421. E.A. testified that clients did not come
to the apartment every day. Id. at 422. However, there would sometimes
be ten or twelve clients at the apartment on a given day. Id. She also was
taken to other apartments to meet with clients. Id. According to E.A., “some
clients wanted us to go to their house.” Id. at 417. E.A. received no money
for her work. Id. at 423. E.A. stated that, when she was taken to other
apartments to see clients, she would take the tickets from the clients. Id.
E.A. would give the tickets to Appellant, “[s]o that he would count them and
see what the total was.” Id. According to E.A., Appellant “would come, …
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like every Friday. So when we would go by, he would come and get the tickets
and the money.” Id.
E.A. expressly told Appellant she did not want to engage in sexual
activities, but Appellant replied, “You’re already here; you’re under my
power.” Id. at 418. E.A. explained: “So I was in a place where I didn’t know
anyone, and I was there with [Appellant], and so I couldn’t go to another
place.” Id. E.A. testified that Appellant told E.A. he was a member of the
18th Street gang. Id. at 418-19. E.A. testified that Appellant “told me he
would be able to find me anywhere in the country.” Id. at 418. E.A. believed
that Appellant could harm her or members of her family, who had remained
in El Salvador, with one phone call. Id. at 420. Appellant also retained E.A.’s
immigration paperwork. Id. at 426. E.A. stated she was not permitted to
leave the apartment on her own. Id. at 427.
E.A. testified that Appellant took her to a hotel and made her have
sexual intercourse with him every day. Id. at 424. E.A. explained, Appellant
“would tell me he wanted to teach me new things so that I could keep the
clients happy.” Id. Appellant would put his penis in her vagina, and “hit me
in the face with his penis.” Id. at 425. E.A. stated Appellant “would put his
penis in my mouth, in my anus, in my vagina.” Id. E.A. stated she did not
wish to have sex with Appellant. Id. E.A. stated that every day, she asked
Appellant if she could leave; Appellant replied, no. Id. at 433.
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E.A. also testified that Sanchez took naked photos of her to use for
advertising her sexual services. Id. at 431. At one point, E.A. told Sanchez’s
friend, Raul, about her circumstances. Id. at 429. Raul offered to help E.A.
Id. Raul bought alcohol “to get [Sanchez] and [Rivera-Mendieta] drunk[,]”
after which they left the apartment. Id. at 430. E.A. and Raul went to Raul’s
house. Id. Appellant eventually came to Raul’s house and demanded $1,000
for taking E.A. from the apartment. Id. According to E.A., Appellant came to
Raul’s house almost every day to demand E.A.’s return or payment. Id. at
430-31.
Sanchez, who previously had entered a guilty plea, also testified at trial.
N.T., 9/18/22, at 620. Sanchez testified that he and Appellant both lived at
483 Lancaster Avenue. Id. at 620. Appellant lived in the basement. Id.
Sanchez testified that he granted Appellant’s request to have E.A. stay with
him. Id. at 621. Sanchez stated, when E.A. came to the apartment, “[s]he
went straight to the bathroom to shower.” Id. Afterwards, E.A. left with
Appellant. Id. Sanchez later learned that Appellant had taken E.A. to a hotel.
Id. According to Sanchez, Appellant admitted to having sex with E.A. Id. at
622. Sanchez stated that, “[a] few hours later[, Appellant] said that [E.A.]
would be working as a prostitute.” Id. Sanchez confirmed E.A. was present
when Appellant said this. Id.
Thereafter, Sanchez began promoting E.A.’s services as a prostitute.
Id. He stated, “I put her several times on Snapchat.” Id. Clients came to
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the apartment to have sex with E.A. Id. Sanchez explained he would “collect
the money and record the time[]” on his telephone. Id. at 622-23.
Sometimes, clients brought “a ticket” to hand to E.A. Id. at 623. Afterwards,
E.A. would give the ticket to Appellant. Id. Sanchez performed these
activities instead of paying rent. Id. Eventually, E.A. left the apartment to
live with Raul. Id. at 626. This worried Sanchez, “[b]ecause I think that
[Appellant] didn’t know that [E.A.] was planning to leave with Raul.” Id.
Sanchez confirmed that he was also worried for himself:
Because the majority of the time, it was me that was home with
[E.A.], and I thought that probably [Appellant] will blame me to
allow one of my friends to come to my house and become friends
with her.
Id. Sanchez admitted he was supposed to be watching E.A. to make sure she
did not leave the apartment. Id. at 626-27.
Sanchez testified that he eventually moved out of the apartment
because he feared for his life:
I had these thoughts in my mind because of the crack. I thought
they wanted to keep everything that was in the apartment and
probably kill me [in] order to keep everything that was in the
apartment. Those were the thoughts in my mind.
Id. at 630.
Sanchez also testified regarding another girl who was brought to the
apartment. Id. at 631. Paolo and Rivera-Mendieta came to Sanchez’s
apartment, which was located near the car dealership. Id. While there,
Rivera-Mendieta showed Sanchez photos of A.M., who was depicted lying on
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a bed wearing only underwear. Id. Sanchez subsequently used the photos
to advertise A.M.’s services as a prostitute. Id. at 632.
Later, Appellant talked with a man and a woman, “Diana” and “Gordo.”
Id. According to Sanchez, Diana and Gordo asked Appellant how much he
would charge for both of them to have sex with A.M. Id. One other client
visited A.M. at that apartment. Id. at 633. Sanchez accepted payment from
that client, and then gave it to Rivera-Mendieta the next day. Id. Sanchez
further testified that Appellant had warned him
never to leave [Sanchez’s] cell phone unattended to always keep
it with me because [A.M.] could use it, and that she was not
allowed to use it at that moment ….
Id. at 640.
Upon review of the above-summarized evidence, in a light most
favorable to the Commonwealth, we agree with Counsel’s assessment that the
evidence is sufficient to sustain each of Appellant’s convictions beyond a
reasonable doubt. We further agree with Counsel’s assessment that such a
challenge would be frivolous.
The above-stated evidence is sufficient to establish Appellant committed
two counts of involuntary servitude, by subjecting A.M. and E.A. to sexual
servitude. See 18 Pa.C.S.A. § 3012(a). The evidence further established
Appellant committed two counts of IDSI by twice engaging in involuntary
deviate sexual intercourse with E.A. See id. § 3012(a)(1). The evidence
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established Appellant sexually assaulted E.A. on two occasions. See id. §
3124.1.
The evidence is further sufficient to sustain Appellant’s conviction for
terroristic threats, as Appellant twice “communicated … a threat to … commit
[a] crime of violence with intent to terrorize another[.]” Id. § 2706(a)(1).
Regarding corrupt organizations, the evidence established Appellant engaged
in a pattern of racketeering activity, by trafficking E.A. for involuntary sexual
servitude. See id. § 911(b)(3), (h)(1). Appellant engaged in the trafficking
of A.M., an individual and a minor, and subjecting her to sexual servitude.
See id. § 3011(a)(1), (b)(1)-(2).
The evidence sufficiently established Appellant conspired with Sanchez
and Rivera-Mendieta to secure the involuntary servitude of both A.M. and E.A.
See id. § 3012(a). The evidence established that Appellant committed the
crime of rape by forcible compulsion. See id. § 3121(a)(1). The evidence
established Appellant participated as a conspirator/accomplice in the
kidnapping of A.M., a minor. See id. § 2901(a)(2), (a.1)(2). The evidence is
sufficient to establish Appellant knowingly held E.A. in a condition of
involuntary servitude (unlawful restraint). See id. § 2902(a)(2). Appellant
also unlawfully restrained A.M., a minor. See id. § 2902(b)(2). Finally, the
evidence established Appellant sexually exploited A.M. See id. § 6320(a).
Regarding Appellant’s challenge to the weight of the evidence, we
review a trial court’s ruling on such a challenge for an abuse of
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discretion. Commonwealth v. Banniger, 303 A.3d 1085, 1095 (Pa. Super.
2023).
The weight given to trial evidence is a choice for the factfinder. If
the factfinder returns a guilty verdict, and if a criminal defendant
then files a motion for a new trial on the basis that the verdict was
against the weight of the evidence, a trial court is not to grant
relief unless the verdict is so contrary to the evidence as to shock
one’s sense of justice.
When a trial court denies a weight-of-the-evidence motion, and
when an appellant then appeals that ruling to this Court, our
review is limited. It is important to understand we do not reach
the underlying question of whether the verdict was, in fact,
against the weight of the evidence. We do not decide how we
would have ruled on the motion and then simply replace our own
judgment for that of the trial court. Instead, this Court
determines whether the trial court abused its discretion in
reaching whatever decision it made on the motion, whether or not
that decision is the one we might have made in the first instance.
Moreover, when evaluating a trial court’s ruling, we keep in mind
that an abuse of discretion is not merely an error in judgment.
Rather, it involves bias, partiality, prejudice, ill-will, manifest
unreasonableness or a misapplication of the law. By contrast, a
proper exercise of discretion conforms to the law and is based on
the facts of record.
Id. (citation omitted).
Upon review of the above-described evidence, we discern no abuse of
the trial court’s discretion in denying Appellant’s post-sentence motion
challenging the weight of the evidence. Such a challenge on appeal would
lack merit and be frivolous, in light of the extensive evidence of Appellant’s
guilt presented at trial.
Appellant further challenges the discretionary aspects of his sentence.
Prior to reaching the merits of a discretionary sentencing issue,
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[w]e conduct 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, 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, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (some
citations omitted).
Here, Appellant was permitted to file a nunc pro tunc appeal of his
judgment of sentence. Appellant preserved his issue in a post-sentence
motion. The Anders brief does not include a Pa.R.A.P. 2119(f) statement.
We will nevertheless ignore this defect. See Commonwealth v. Lilley, 978
A.2d 995, 998 (Pa. Super. 2009) (declining to find waiver of a discretionary
sentencing claim “in light of [c]ounsel’s petition to withdraw,” even though the
Anders brief contained a deficient Rule 2119(f) statement). Finally,
Appellant’s challenge to his sentence as manifestly excessive raises a
substantial question that his sentence is inappropriate under the Sentencing
Code. See Commonwealth v. Mouzon, 812 A.2d 617, 624 (Pa. 2002)
(stating that a claim that a sentence is excessive, even if it is within the
statutory limits, can raise a substantial question for appellate review).
For challenges to the discretionary aspects of a sentence, we employ a
well-settled set of precepts:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
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of discretion is not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation
omitted). Moreover, where, as here, the trial court sentenced within the
guidelines, such as in the present matter, we may only vacate the sentence if
it is “clearly unreasonable.” 42 Pa.C.S.A. § 9781(c)(2).
A sentencing court is to consider the protection of the public, the gravity
of the offense as it relates to the impact on the victim and the community,
and the rehabilitative needs of the defendant. See id. § 9721(b). On appeal,
this Court is required to, inter alia, glean the nature and circumstances of the
offenses and history and characteristics of the defendant as well as take note
of the opportunities that the sentencing court had to observe the defendant,
specifically in contemplation of it having reviewed a pre-sentence
investigation. See id. § 9781(d).
Here, the trial court considered the appropriate sentencing factors, and
had the benefit of a presentence investigation report. Where the sentencing
court had the benefit of a presentence investigation report, the law presumes
the court was aware of and weighed relevant information regarding a
defendant’s character along with mitigating statutory factors.
Commonwealth v. Tirado, 870 A.2d 362, 366 n.6 (Pa. Super. 2005). The
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sentence is not manifestly unreasonable, given Appellant’s actions and the
nature and extent of the criminal enterprise. See 42 Pa.C.S.A. § 9781(c)(2).
Finally, our independent review discloses no non-frivolous issues that
could be raised by Appellant. Accordingly, we grant Counsel’s petition to
withdraw, and affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Date: 11/19/2024
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