Com. v. Figueroa, J., Jr.

J-S10012-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSE FIGUEROA, JR. :
:
Appellant : No. 955 MDA 2020
Appeal from the Judgment of Sentence Entered June 10, 2020
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001023-2018
BEFORE: MURRAY, J., McLAUGHLIN, J., and PELLEGRINI, J.*
MEMORANDUM BY MURRAY, J.: FILED May 14, 2021
Jose Figueroa, Jr. (Appellant) appeals from the judgment of sentence
imposed after a jury convicted him of one count each of rape by forcible
compulsion, sexual assault, unlawful restraint, and robbery, and two counts
each of criminal conspiracy.1 We affirm.
The trial court described the facts underlying Appellant’s convictions as
follows:
. . . [The Victim] in this case, purchased her first car — a 2000
Buick Century — on March 7, 2017. On that evening at about
9:00 p.m., [the Victim] reached out to “Quan” via Facebook.
Although [the Victim] only knew Quan by his nickname, he was
later identified as Jaquan Watson. According to [the Victim], Quan
was a trusted friend, so she made a plan to get together with him.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3121(a)(1), 3124.1, 2902(a)(1), 3701(a)(1)(ii), and 903,
respectively.
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[The Victim] drove her car to a convenience store on 17th Street
near Hall Manor in Harrisburg to meet him, and their plan was to
smoke marijuana in the Buick. Upon her arrival at 10:00 p.m.,
Quan got into [the Victim’s] front passenger seat, and a friend of
Quan’s who [the Victim] had never met got into the back seat.
Quan told [the Victim] that his friend was cool and not to worry.
Quan’s friend was later identified as [Appellant].
The three of them went for a 1½ hour joyride through Harrisburg
while smoking marijuana. They ended up in a parking lot on the
way back to the convenience store and Quan and [Appellant] got
out of the car while [the Victim] remained in the driver’s seat.
There were other people around, including another man who came
up to the car, and “they were just standing around talking,
showing off [a] gun.” They were all passing the gun around and
looking at it. After about 20 minutes, Quan got into the back seat
of [the Victim’s] car and [Appellant] got into the front passenger
seat. [The Victim] asked where she was dropping them off and at
that point Quan asked where the money was. [The Victim] asked
him what money he was referring to and Quan started
“rummaging,” so [the Victim] opened her glove compartment and
told him to take it. Quan put the gun to [the Victim’s] head while
telling her to drive and not make any sudden moves; he directed
her to turn down an alley. [The Victim] said, “l’m not going down
an alleyway so you can kill me,” to which Quan responded that
they were not going to kill her. While [the Victim] was driving,
[Appellant] asked Quan about condoms. [The Victim] ended up
pulling over onto a street, not an alley, and was told to take off
her pants. Quan still had the gun pointed at [the Victim’s] head
from the back seat.
Quan and [Appellant] made [the Victim] push her car seat all the
way back and told her to spread out across the car as quickly as
possible. While leaning back, [the Victim] was forced to perform
oral sex on Quan, who was still in the back seat. At the same
time, [Appellant] put a plastic bag on his penis in the front seat
and was inserting it into [the Victim’s] vagina. [The Victim]
testified that [Appellant] was having trouble maintaining an
erection and was using his fingers to get her vagina wet. Quan
ejaculated on [the Victim’s] face, but the assault did not stop.
[The Victim] testified, “Quan’s friend was like make her suck your
dick again just so he can try to, you know, get up and finish the
rape. And I end up sucking Quan’s penis again while he’s
[Appellant] still raping me, trying to rape me with the bag.”
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After the assault ended, Quan and [Appellant] told [the Victim]
that they were going to take her car, so she grabbed her keys and
phone and opened the car door. As soon as she grabbed the keys,
[Appellant] pulled her in an attempt to get the keys and they
ended up tussling back and forth. Quan proceeded to hit [the
Victim] on the head with the pistol repeatedly, at least six times,
but [the Victim] was able to flee from the car. At that point she
was wearing no pants, and was only dressed in a hoodie, one boot
on her left foot, and one sock on her right foot. After running
through yards and banging on some doors, [the Victim] called
911.
When the officers arrived, they wrapped [the Victim] in a blanket.
While she was with the officers [the Victim] received a phone call
from [Appellant]; she told the officers that this was “him” and put
[Appellant] on speaker after the police told her to go ahead and
answer the call. [The Victim] recalled that he said “Oh, we’re good
though, right?” [The Victim] responded, “No, you raped me. You
raped me. What do you mean we’re good?” [The Victim] wanted
the police to know where he was, so she then told [Appellant] that
they were “good” and asked where he was. [Appellant] mentioned
a building number, and then [the Victim] was taken to the hospital
via ambulance; she did not recall the ambulance ride.
When asked about any photographs taken that night, [the Victim]
recalled suggesting, prior to the rape, that the three of them take
pictures to post on Instagram and Facebook. The photos, which
were admitted at trial, depicted one of [the Victim] in the front
seat of the car and [Appellant] in the back, before they pulled over
in the parking lot. Another photo showed Quan, but it was too
dark to identify him. When asked in the courtroom who raped her
with a plastic bag, [the Victim] identified [Appellant].
***
Sergeant Kyle Gautsch of the Harrisburg City Police had the
opportunity to speak with Detectives Jason Paul and Jon Fustine
about the investigation of [the Victim’s] rape. During the course
of that discussion, Sergeant Gautsch observed a series of
photographs that had been taken off of [the Victim’s] phone. Upon
viewing the photos, Sergeant Gautsch believed he recognized one
of the individuals depicted. Specifically, he thought the person
with Jayquan (Quan) Watson was Tito Hernandez, someone
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Sergeant Gautsch had interacted with multiple times during the
years he was a school resource officer at the Lincoln Elementary
School as part of the Harrisburg Police Bureau School Resource
Unit. The identification resulted in charges being filed against Tito
Hernandez. However, after concern on the part of law
enforcement as to whether a correct identification had been made,
such charges against Mr. Hernandez were immediately withdrawn.
DNA evidence had been recovered at the scene and the police
officers were instructed to wait for the DNA confirmation to ensure
they arrest the correct person. Buccal swabs were taken from
Jayquan (Quan) Watson, [Appellant], and Tito Hernandez.
***
The Commonwealth called additional expert witnesses at trial. The
first one to testify was Veronica Miller, a forensic DNA scientist
employed by the Pennsylvania State Police. Ms. Miller analyzed
the following DNA samples: two swabs from [the Victim’s] face
(Q-l), two swabs from [the Victim’s] left hand (Q-2), one swab
from the plastic bag (Q-3), and two additional swabs from the
plastic bag (Q-4). It was Ms. Miller’s understanding that the
referenced plastic bag was the one found outside of [the Victim’s]
vehicle. . . . [A]s to the two swabs taken from the plastic bag, Ms.
Miller’s findings were as follows:
In all the areas that we test, the DNA profile obtained
from the known reference sample from [Appellant],
Item Q4, matches the DNA profile obtained from the
sperm fraction of the swab collected from the plastic
bag, which was Item Q3M.
The non-sperm fraction of the swab collected from the
plastic bag, which was Item Q3F, and the sperm
fractions of the swabs collected from the plastic bag,
which was Item Q4M. So there were two separate
swab samples taken from that plastic bag . . . Those
DNA profiles matched the DNA profile from
[Appellant].
Ms. Miller also testified that Tito Hernandez could not be included
as a contributor to the interpretable DNA profiles obtained from
the evidence in this case.
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Trial Court Opinion, 10/28/20, at 1-4, 6, 10-11 (record citations and footnotes
omitted).
On March 12, 2020, following a four-day trial, a jury convicted Appellant
of the aforementioned crimes. On June 10, 2020, the trial court sentenced
Appellant to an aggregate 19 to 40 years of imprisonment, to be served
consecutively to any other sentences Appellant was serving. Appellant timely
filed post-sentence motions, which the trial court denied on June 24, 2020.
This timely appeal followed.2
Appellant presents three questions on appeal:
1. Whether the evidence presented by the Commonwealth at
trial was not sufficient to prove the charges of rape, criminal
conspiracy to commit rape, robbery, criminal conspiracy to
commit robbery?
2. Whether the trial court erred when it denied Appellant’s post
sentence motion for a new trial based on the weight of the
evidence?
3. Whether the trial court imposed an unreasonable and
excessive sentence and the trial court abused its discretion or the
sentence is contrary to the fundamental norms underlying the
sentencing process when it imposed its sentence without
consideration of the factors set out in 42 Pa.C.S. § 9721(b)?
Appellant’s Brief at 9 (underlining and unnecessary capitalization omitted).
____________________________________________
2 Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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In his first issue, Appellant claims the evidence was insufficient to
sustain his convictions for rape, conspiracy to commit rape, robbery, and
conspiracy to commit robbery.3 Appellant’s Brief at 18-19. These claims are
waived.
We recognize:
A claim challenging the sufficiency of the evidence presents a
question of law. Commonwealth v. Widmer, 560 Pa. 308, 744
A.2d 745, 751 (Pa. Super. 2000). We must determine “whether
the evidence is sufficient to prove every element of the crime
beyond a reasonable doubt.” Commonwealth v. Hughes, 521
Pa. 423, 555 A.2d 1264, 1267 (1989). We “must view evidence in
the light most favorable to the Commonwealth as the verdict
winner, and accept as true all evidence and all reasonable
inferences therefrom upon which, if believed, the fact finder
properly could have based its verdict.” Id.
Our Supreme Court has instructed:
[T]he facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder 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. Moreover, in applying the
above test, the entire record must be evaluated and
all evidence actually received must be considered.
Finally, the trier of fact while passing upon the
credibility of witnesses and the weight of the evidence
produced, is free to believe all, part or none of the
evidence.
Commonwealth v. Ratsamy, 594 Pa. 176, 934 A.2d 1233,
1236 n.2 (2007).
____________________________________________
3 Appellant does not challenge his convictions for sexual assault or unlawful
restraint.
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Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa. Super. 2013).
Instantly, Appellant has failed to develop a legal argument. See
Appellant’s Brief at 18-19. First, Appellant disregards our standard of review,
which requires that we view the evidence in a light most favorable to the
Commonwealth as verdict winner; rather, he discusses the evidence in the
light most favorable to him, and ignores the fact that this Court does not re-
weigh evidence or engage in credibility determinations. Id. In addition,
Appellant failed to identify in his Rule 1925(b) statement what elements of the
convictions he is challenging, and does not cite pertinent legal authority.
The Rules of Appellate Procedure state unequivocally that each
question an appellant raises is to be supported by discussion and
analysis of pertinent authority. Appellate arguments which fail to
adhere to these rules may be considered waived, and arguments
which are not appropriately developed are waived. Arguments not
appropriately developed include those where the party has failed
to cite any authority in support of a contention. This Court will not
act as counsel and will not develop arguments on behalf of an
appellant. Moreover, we observe that the Commonwealth Court,
our sister appellate court, has aptly noted that [m]ere issue
spotting without analysis or legal citation to support an assertion
precludes our appellate review of [a] matter.
Coulter v. Ramsden, 94 A.3d 1080, 1088-89 (Pa. Super. 2014) (citations
omitted). See also Commonwealth v. Crosley, 180 A.3d 761, 768 (Pa.
Super. 2018) (citation omitted) (it is well settled that “even the
uncorroborated testimony of a single witness may alone be sufficient to
convict a defendant.”); Commonwealth v. Castelhun, 889 A.2d 1228, 1232
(Pa. Super. 2005) (“the uncorroborated testimony of the complaining witness
is sufficient to convict a defendant of sexual offenses.”). Accordingly,
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Appellant’s sufficiency claim is waived.4 See Commonwealth v. Liston, 941
A.2d 1279, 1285 (Pa. Super. 2008) (en banc), affirmed in part and vacated in
part, 977 A.2d 1089 (Pa. 2009); Pa.R.A.P. 2101.
In his second issue, Appellant challenges the weight of the evidence.
Appellant’s Brief at 19-21. We have stated:
The finder of fact is the exclusive judge of the weight of the
evidence as the fact finder is free to believe all, part, or none of
the evidence presented and determines the credibility of the
witnesses.
As an appellate court, we cannot substitute our judgment for that
of the finder of fact. Therefore, we will reverse a jury’s verdict
and grant a new trial only where the verdict is so contrary to the
evidence as to shock one’s sense of justice. A verdict is said to
be contrary to the evidence such that it shocks one’s sense of
justice when the figure of Justice totters on her pedestal, or when
the jury’s verdict, at the time of its rendition, causes the trial judge
to lose his breath, temporarily, and causes him to almost fall from
the bench, then it is truly shocking to the judicial conscience.
Furthermore, where the trial court has ruled on the weight claim
below, an appellate court’s role is not to consider the underlying
question of whether the verdict is against the weight of the
evidence. Rather, appellate review is limited to whether the trial
court palpably abused its discretion in ruling on the weight claim.
Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa. Super. 2013) (en
banc) (citation and quotation marks omitted). “Thus, the trial court’s denial
____________________________________________
4 Even in the absence of waiver, this claim lacks merit. In his well-reasoned
opinion, the Honorable Scott Arthur Evans, sitting as the trial court, discusses
the evidence and explains why it was sufficient to sustain the verdicts. Trial
Court Opinion, 10/28/20, at 1-16. The record supports Judge Evans’ analysis,
and had Appellant not waived this issue, we would adopt the court’s reasoning
as our own.
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of a motion for a new trial based on a weight of the evidence claim is the least
assailable of its rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879-80
(Pa. 2008) (citation omitted).
Here, the trial court stated:
This [c]ourt has no reluctance in rejecting [Appellant’s] reasons in
support of a new trial based on weight of the evidence. The jury
weighed all evidence presented, evaluated [the Victim’s]
testimony, and found her credible as it was permitted to do. The
jury was entitled to resolve any inconsistencies in the evidence
highlighted by [Appellant], and did so. A review of the record
reveals nothing that would rise to the level of the evidence being
so tenuous, vague, and uncertain that the verdict shocks the
conscience of the [c]ourt; rather, quite to the contrary. There is
no merit to [Appellant’s] challenge.
Trial Court Opinion, 10/28/20, at 22. We agree. Fact-finding and credibility
determinations are matters for the jury. The record reflects that the jury
credited the testimony of the Commonwealth’s witnesses, and sitting as the
finder of fact, was free to do so. See Commonwealth v. Griscavage, 517
A.2d 1256, 1259 (Pa. 1986). Appellant’s weight of the evidence claim is
without merit.
In his final issue, Appellant challenges the discretionary aspects of his
sentence. Appellant’s Brief at 21-22. There is no absolute right to challenge
the discretionary aspects of a sentence on appeal. See Commonwealth v.
Hill, 66 A.3d 359, 363 (Pa. Super. 2013). Rather, where the appellant has
preserved the sentencing challenge for appellate review by raising it in a post-
sentence motion, he must (1) include in his brief a concise statement of the
reasons relied upon for allowance of appeal with respect to the discretionary
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aspects of a sentence pursuant to Pa.R.A.P. 2119(f); and (2) show there is a
substantial question that the sentence is not appropriate under the Sentencing
Code. Hill, 66 A.3d at 363-64.
Appellant has included a Rule 2119(f) statement in his brief. See
Appellant’s Brief at 16-17. We therefore examine the statement to determine
whether a substantial question exists. Appellant asserts:
In the case sub judice, the trial court abused its discretion when
it offered its opinion to future proceedings and failed to consider
issues of protection of the public, the gravity of the offense as it
relates to the community, and the rehabilitative needs of the
defendant as required by 42 Pa.C.S. § 9721(b).
Appellant’s Brief at 17; see also id. at 21-22 (claiming trial court failed to
assess Appellant’s rehabilitative needs because it did not consider mitigating
circumstances including Appellant’s youth and fact that Appellant was not the
instigator in the crimes).
Appellant does not raise a substantial question. See Commonwealth
v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (“An allegation that the
sentencing court failed to consider certain mitigating factors generally does
not necessarily raise a substantial question.”). In any event, the court in this
case had the benefit of a pre-sentence investigation report. “Where pre-
sentence reports exist, we shall continue to presume that the sentencing judge
was aware of relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory factors.”
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Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). Thus, Appellant’s
final claim lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/14/2021
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