Com. v. Valdvia, G. ( 2021 )

J-A01045-21
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
GERARDO VALDVIA, :
:
Appellant : No. 82 EDA 2020
Appeal from the Judgment of Sentence Entered November 15, 2019
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005909-2018
BEFORE: BENDER, P.J.E., OLSON, J. and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 24, 2021
Appellant, Gerardo Valdvia, appeals from the judgment of sentence of
an aggregate term of two to five years’ incarceration, followed by two years’
probation, imposed after he was convicted, following a non-jury trial, of
corruption of a minor (“COM”), endangering the welfare of a child (“EWOC”),
and physical harassment. Appellant challenges the sufficiency and weight of
the evidence to sustain his convictions, as well as the discretionary aspects
of his sentence. He also contends that a new trial is warranted due to
prosecutorial misconduct. After careful review, we reverse Appellant’s
conviction for COM, vacate his judgment of sentence for that offense, and
affirm his judgment of sentence for EWOC and harassment.
*Retired Senior Judge assigned to the Superior Court.
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On August 31, 2018, Appellant was charged with one count each of
unlawful contact with a minor, 18 Pa.C.S. § 6318(a)(1); COM, 18
Pa.C.S. § 6301(a)(1); harassment, 18 Pa.C.S. § 2709(a)(1); EWOC, 18
Pa.C.S. § 4304(a)(1); and indecent assault of a person less than 13 years of
age, 18 Pa.C.S. § 3126(a)(7). He proceeded to a non-jury trial on
September 3, 2019, wherein L.W., the victim, testified to the incidents
occurring between November 12, 2012, and November 12, 2015, which gave
rise to the charges. L.W.’s mother and Appellant also testified.
The following factual background was established at Appellant’s non-
jury trial. L.W. testified that when she was a child, Appellant, who was then
married to her aunt, sexually assaulted her on multiple occasions. L.W.
would frequently spend time with Appellant’s daughters, who are L.W.’s
cousins, at Appellant’s house. When L.W. was 11 years old, she was alone
in Appellant’s basement taking out her braids when Appellant went
downstairs, approached L.W. from behind, and squeezed her buttocks. She
testified that she did not tell anyone at the time because she was afraid her
aunt would “pin it on [her], not believe [her], and take [Appellant’s] side.”
N.T., 9/3/2019, at 14.
The following year, just after L.W.’s 12th birthday, Appellant assaulted
L.W. a second time. She testified that he went into her room when she was
cleaning up and “made [her] touch his penis over his clothes.” Id. at 15.
Immediately after Appellant forced L.W. to touch him, he handed L.W. cash.
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She testified that she did not know if the money was “hush money or
birthday money,” but it was strange to her as Appellant had never given her
money before. Id. at 16. L.W. did not come forward after this incident
because she was “scared of how people would think” about her. Id. at 19-
20.
Later that year, L.W. went to Dave & Buster’s, an arcade, with
Appellant and his daughters. When they were driving home, Appellant
dropped his daughters off and then asked L.W. to move to the front seat of
the car. L.W. testified that she was in the back seat acting like she was
sleeping because she “knew he was going to try to do something” when they
were alone. Id. at 21. After she reluctantly moved to the front seat,
Appellant asked her if she “wanted to do anything with him.” Id. at 20. She
told him “no,” and he replied, “Well, I will find someone else to do something
with me.” Id. at 21.
When L.W. was 13, her grandmother asked her to go to the bank
alone with Appellant. She testified that she did not want to go because she
was afraid Appellant would try to touch her or force her to touch him. Id. at
24. Ultimately, she got in the front seat of the car with him. L.W. testified
that during the drive Appellant asked her if she had “told anyone.” Id. at
25. She assumed he was referring to “him touching [her] and [her]
touching him.” Id. She had not told anyone at that point, but in May of
2018, when L.W. was 17 years old, she told her mother about the foregoing
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incidents. L.W. explained that one of her friends had been raped, which
made her want to tell her mother. Id. at 26. That same day, she went to
the police station to make a report.
At the close of trial, the trial court found Appellant guilty of COM,
EWOC, and harassment, and not guilty of unlawful contact with a minor and
indecent assault of a person less than 13 years of age. On November 15,
2019, Appellant was sentenced to two to five years’ incarceration followed
by two years’ probation for COM, and two to five years’ incarceration
followed by two years’ probation for EWOC. The sentence for EWOC was set
to run concurrently with the sentence for COM. Additionally, Appellant’s
conviction for COM classified him as a Tier I sexual offender, and required
him to comply with the fifteen-year registration and reporting requirements
of the Sexual Offender Registration and Notification Act (“SORNA”). See 42
Pa.C.S. §§ 9799.14(b); 9799.15(a)(1). No further penalty was imposed for
Appellant’s harassment conviction. Appellant did not file a post-sentence
motion.
Appellant filed a timely notice of appeal and complied with the trial
court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. No responsive Rule 1925(a) opinion was filed, as
the trial judge was no longer sitting on the bench. On appeal, Appellant
presents five issues for our review:
1. Was the evidence insufficient to support the guilty verdict?
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2. Did the honorable trial court err in returning an inconsistent
verdict, as the honorable trial court found [] Appellant not
guilty of the charges of unlawful contact with a minor and
indecent assault, but guilty of the charges of harassment[,] a
summary offense, [COM], and [EWOC?]
3. Did the honorable trial court err in finding [] Appellant guilty
of the crime of corruption of minors, as [] Appellant was
found not guilty of any criminal offenses or any course of
conduct in violation of Chapter 31 relating to sexual offenses,
which is legally required pursuant to []18 [Pa.C.S. §]
6301[(a)](1)(iii)?
4. Was the verdict against the weight of the evidence?
5. Did the honorable trial court sentence [] Appellant to an
excessive, disproportionate sentence and outside the
sentencing guidelines[?]
6. Did the Commonwealth commit misconduct by failing to
disclose to the honorable trial court and [] Appellant and his
trial counsel that the complaining witness[’s] father is a
[Philadelphia politician1] and should have at least informed
and disclosed to the honorable trial court and [Appellant]
prior to the [non-]jury trial for possible court recusal and for a
colloquy of [] Appellant of the potential conflict?
Appellant’s Brief at 7 (capitalization altered, questions reordered for ease of
disposition).
In his first issue, Appellant presents a blanket claim that there was
insufficient evidence to support his convictions. Appellant’s Brief at 43.
Before we can reach the merits of this claim, we must first determine if
Appellant has preserved it for our review. Appellant’s Rule 1925(b)
1 Pursuant to Superior Court I.O.P. 424(A), we have omitted specific
information pertaining to the political positions of L.W.’s father to protect
L.W.’s identity.
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statement exclusively states, “The evidence was insufficient to support the
guilty verdict.” Appellant’s Rule 1925(b) Statement at 1 (unnumbered).
Appellant was convicted of three offenses, each of which contains various
elements, yet he failed to specify what offense or element the
Commonwealth failed to prove. Therefore, Appellant has waived his general
sufficiency-of-the-evidence issue on appeal. See Commonwealth v.
Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (reiterating “that when
challenging the sufficiency of the evidence on appeal, the [a]ppellant’s
[Rule] 1925 statement must ‘specify the element or elements upon which
the evidence was insufficient’ in order to preserve the issue for appeal”)
(quoting Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super.
2008) (citations omitted)).
However, we will address Appellant’s more specific sufficiency claim,
which he presents as an argument regarding inconsistent verdicts.
Specifically, in his second issue, Appellant argues that he is entitled to relief
because the trial court rendered an inconsistent verdict. Appellant’s Brief at
27. Appellant claims that “the []trial court did not believe the complaining
witness[’s] testimony that [] Appellant placed her hand on top of his clothed
penis, as the [trial c]ourt found [] Appellant not guilty of indecent assault
and unlawful contact with a minor.” Id. at 28. Thus, Appellant contends,
there was no evidence credited by the trial court that he engaged in conduct
that could support a conviction for EWOC. Id.
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A claim based on inconsistent verdicts is essentially an argument that
the evidence was insufficient, in that an appellant is arguing that a verdict of
acquittal implies a factual finding which would undermine a guilty verdict.
See Commonwealth v. Baker-Myers, ___ A.3d ___, 2021 WL 3073152,
at *4-6 (Pa. filed July 21, 2021). Our scope and standard of review for
sufficiency-of-the-evidence claims are well settled. “A claim challenging the
sufficiency of the evidence is a question of law. Evidence will be deemed
sufficient to support the verdict when it establishes each material element of
the crime charged and the commission thereof by the accused, beyond a
reasonable doubt.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa.
2000) (citations omitted).
Generally, inconsistent verdicts are not grounds for relief:
“[I]nconsistent verdicts, while often perplexing, are not
considered mistakes and do not constitute a basis for reversal.”
Commonwealth v. Petteway, 847 A.2d 713, 718 (Pa. Super.
2004) (citations omitted). Rather, “[t]he rationale for allowing
inconsistent verdicts is that it is the jury’s sole prerogative to
decide on which counts to convict in order to provide a
defendant with sufficient punishment.” Commonwealth v.
Miller, 657 A.2d 946, 948 (Pa. Super. 1995) (citations omitted).
“When an acquittal on one count in an indictment is inconsistent
with a conviction on a second count, the court looks upon the
acquittal as no more than the jury’s assumption of a power
which they had no right to exercise, but to which they were
disposed through lenity. Thus, this Court will not disturb guilty
verdicts on the basis of apparent inconsistencies as long as there
is sufficient evidence to support the verdict.” Petteway, supra.Commonwealth v. Frisbie, 889 A.2d 1271, 1273 (Pa. Super. 2005)
(citations modified). Because a verdict can be the result of compromise,
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leniency, or mistake, “factual findings may not be inferred from a jury’s
acquittal.” Commonwealth v. Moore, 103 A.3d 1240, 1248 (Pa. 2014).
Although these cases phrase this rule in the context of jury trials, this Court
has held that the “same rule applies in nonjury trials.” Commonwealth v.
Yachymiak, 505 A.2d 1024, 1026 (Pa. Super. 1986).
Here, Appellant does not argue that an express exception to the
general rule on inconsistent verdicts applies. Indeed, he acknowledges that
“‘this Court will not disturb the guilty verdicts on the basis of [an] apparent
inconsistenc[y] as long as [the] evidence [is sufficient] to support the
[guilty] verdict[s].’” Appellant’s Brief at 28 (quoting Commonwealth v.
Boyles 595 A.2d 1180, 1884 (Pa. Super. 1991)). Nevertheless, Appellant
argues that the verdict of “not guilty of all sexual contact charges”
demonstrates that Appellant did not engage in conduct that endangered the
welfare of a child. Id. In doing so, Appellant is asking this Court to infer
factual findings from the trial court’s verdict, which we cannot do. See
Moore, 103 A.3d at 1248. Accordingly, Appellant’s second claim is without
merit.
In his third issue, Appellant challenges his conviction for COM in light
of the trial court’s verdict that he was not guilty of indecent assault of a
minor, the only Chapter 31 offense with which Appellant was charged.
Appellant’s Brief at 16. The subsection of COM under which Appellant was
convicted states in relevant part, “Whoever, being of the age of 18 years
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and upwards, by any course of conduct in violation of Chapter 31 (relating to
sexual offenses) corrupts or tends to corrupt the morals of any minor less
than 18 years of age … commits a felony of the third degree.” 18 Pa.C.S. §
6301(a)(1)(ii). He argues that there is insufficient evidence to sustain his
COM conviction because, in failing to obtain a conviction for indecent assault
of a minor, which is a Chapter 31 offense, the Commonwealth failed to prove
all the elements of COM. Appellant’s Brief at 16-18.
Generally, inconsistency in verdicts does not support the conclusion
that there was insufficient evidence to sustain a conviction because “an
acquittal cannot be interpreted as a specific finding in relation to some of the
evidence.” Commonwealth v. Magliocco, 883 A.2d 479, 492 (Pa. 2005)
(citations omitted). However, as in the instant case, where the elements of
the charged crime include that the Commonwealth prove a predicate
offense, an acquittal on the predicate offense presents a challenge to the
sufficiency of the evidence. See Baker-Myers, ___ A.3d ___, 2021 WL
3073152, at *4-6.
Our Supreme Court has held that the Commonwealth is required to
prove a Chapter 31 offense as the predicate offense for a felony COM
conviction.
[T]he language “in violation of Chapter 31” is an essential
element of a felony [COM] offense under 18 Pa.C.S. §
6301(a)(1)(ii). Although the Commonwealth is not required to
formally charge or secure a conviction for a predicate Chapter 31
offense, where, as here, the jury is specifically instructed on the
predicate offense or offenses pertaining to the [COM] charge,
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and the jury then renders an acquittal on all such predicates, a
conviction for felony [COM] cannot stand. In reaching this
conclusion, we do not disturb the longstanding principle
permitting inconsistent verdicts or its corollary that factual
findings may not be inferred from a jury’s acquittal. Instead, we
simply recognize the statute’s unusual phrasing has left it
vulnerable to “idiosyncratic sufficiency ... challenges[.]” … And,
as demonstrated, it is “the fact of the jury’s acquittal — not any
factual inference drawn from the acquittal — and the statutory
elements” of the offense that drive this conclusion.
Baker-Myers, ___ A.3d ___, 2021 WL 3073152, at *9 (citations omitted).2
Here, the predicate Chapter 31 offense was indecent assault of a
minor. As detailed hereinabove, the trial court found Appellant not guilty of
indecent assault of a minor. Because the trial court found Appellant not
guilty of the only charged Chapter 31 offense, there was insufficient
evidence to support Appellant’s COM conviction. Consequently, we reverse
Appellant’s conviction for COM and vacate the sentence imposed for that
offense.3 Because the court sentenced Appellant to concurrent, identical
sentences for COM and EWOC, the overall sentencing scheme has not been
2 At the time Appellant filed his notice of appeal, Baker-Myers was pending
before our Supreme Court. At issue in that case was the question of
whether a Chapter 31 violation is an essential element of COM. In its brief,
the Commonwealth conceded that if our Supreme Court concluded that a
violation of Chapter 31 is an essential element of COM, there was insufficient
evidence to convict Appellant of COM in the instant case. Commonwealth’s
Brief at 11-12. In light of this, the Commonwealth requested that this Court
defer its decision until our Supreme Court rendered its decision in Baker-
Myers, which it did on July 21, 2021.
3 This disposition also vacates the SORNA registration requirement imposed
as a result of the COM conviction. See Commonwealth v. Baker-Myers,
210 A.3d 1093, 1096 (Pa. Super. 2019), affirmed, ___ A.3d ___, 2021 WL
3073152.
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disturbed, and we need not remand for resentencing. Commonwealth v.
Thur, 906 A.2d 552, 569-70 (Pa. Super. 2006) (declining to remand
because vacating Thur’s sentence did not disrupt the overall sentencing
scheme where the sentence was concurrent and vacating did not change the
aggregate length of incarceration).
Appellant’s fourth issue challenges the weight of the evidence to
support his convictions. Appellant’s Brief at 37. Initially, to preserve a
challenge to the weight of the evidence, the appellant must raise that claim
before the trial court. See Pa.R.Crim.P. 607(A) (stating that a claim that a
verdict was against the weight of the evidence must be raised before trial
court orally or in a written motion prior to sentencing, or in a post-sentence
motion). Presently, Appellant did not file a post-sentence motion raising his
weight issue, and he fails to point to where in the record he preserved it
prior to sentencing. See Pa.R.A.P. 2119(e) (directing that the appellant
must set forth in the argument portion of his brief where in the record he
preserved the issue before the trial court). Our review confirms that
Appellant did not preserve this claim orally prior to sentencing.
Consequently, Appellant’s issue is waived. See Commonwealth v. Griffin,
65 A.3d 932, 938 (Pa. Super. 2013) (finding a weight-of-the-evidence claim
waived where the appellant failed to raise it in a pre-sentence motion, did
not address the issue orally prior to sentencing, and did not raise it in a
post-sentence motion).
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In his fifth issue, Appellant challenges the discretionary aspects of his
sentence. Appellant’s Brief at 32.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must
invoke this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1)
whether [the] 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 [the] 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)[.] Objections to the discretionary aspects of a sentence
are generally waived if they are not raised at the sentencing
hearing or in a motion to modify the sentence imposed.
Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super.
2003)[.]
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
In the present case, Appellant has failed to preserve his discretionary-
aspects-of-sentencing challenge in a post-sentence motion or orally at the
sentencing hearing. Consequently, this issue is waived. See Griffin,
supra; see also Commonwealth v. Bromley, 862 A.2d 598, 603 (Pa.
Super. 2004) (“It is well settled that an [a]ppellant’s challenge to the
discretionary aspects of his sentence is waived if the [a]ppellant has not filed
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a post-sentence motion challenging the discretionary aspects with the
sentencing court.”) (citation omitted).
Appellant presents his final issue as a prosecutorial-misconduct claim,
arguing that the Commonwealth had a duty to inform Appellant and the trial
court that L.W.’s father knew the trial judge through L.W.’s father’s current
position in, and history of involvement with, the Philadelphia Democratic
party. Appellant’s Brief at 20. Specifically, Appellant alleges that “the trial
court was ambushed [at the sentencing hearing] by the Commonwealth’s
failure to disclose that [L.W.’s] father had known the [t]rial [j]udge for over
twenty years” when L.W.’s father appeared and testified at Appellant’s
sentencing hearing. Id. at 20-21.
Initially, we observe that Appellant did not object or otherwise
preserve the issue before the trial court. Therefore, this claim is waived.
See Commonwealth v. Sasse, 921 A.2d 1229, 1238 (Pa. Super. 2007)
(“In order to preserve a claim of prosecutorial misconduct for appeal, a
defendant must make an objection and move for a mistrial.”). To the extent
Appellant is claiming the trial judge should have recused himself, Appellant
has also waived this claim by not requesting recusal before the trial court at
the time he became aware of the alleged conflict. See Commonwealth v.
Blount, 207 A.3d 925, 930-31 (Pa. Super. 2019) (holding that the
appellant’s recusal claim was waived because the appellant waited until the
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end of sentencing to move for the judge to recuse herself, rather than when
he became aware of the basis for his recusal request).
Based on the foregoing, we affirm Appellant’s conviction and judgment
of sentence for EWOC and harassment. We reverse his conviction for COM
and vacate his judgment of sentence for that offense.
Conviction and sentence for COM vacated. Judgment of sentence
affirmed in all other respects.
Judge Strassburger did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/24/2021
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