Com. v. Huertas, D.

J-S50041-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID HUERTAS :
:
Appellant : No. 1915 EDA 2016
Appeal from the Judgment of Sentence April 29, 2016
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0001251-2015
BEFORE: PANELLA, MOULTON, and RANSOM, JJ.
MEMORANDUM BY RANSOM, J.: FILED SEPTEMBER 19, 2017
Appellant, David Huertas, appeals from the judgment of sentence of
sixty to one hundred forty years of incarceration, imposed April 29, 2016,
following a jury trial resulting in his conviction for Rape of a Child, two
counts of Involuntary Deviate Sexual Intercourse with a Person Less than 16
Years of Age, Involuntary Deviate Sexual Intercourse with a Child,
Aggravated Indecent Assault with Complainant Less than 16 Years of Age,
two counts of Corruption of Minors with Defendant Age 18 or Above, and
Indecent Assault of a Person Less than 16 Years of Age.1 We affirm.
The trial court summarized the facts of the case as follows:
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1
18 Pa.C.S.A. §§ 3121(c), 3123(a)(7), 3123(b), 3125(a)(8), 6301(a)(1)(ii),
3126(a)(8), respectively.
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In the instant case, the testimony at trial revealed that L.M. is a
15 year old girl, with a date of birth of May [], 2000.
Additionally, N.D. is a 13 year old girl, with a date of birth of
September [], 2002. [Appellant], David Huertas, is L.M.’s and
N.D.’s stepfather. [Appellant] was the only father who[m] L.M.
and N.D. knew, as he had been in their lives since they were
very young.
Starting in the summer of 2011, when L.M. was approximately
eleven (11) years old, [Appellant] called her into his bedroom
and touched her “in ways that she did not like.” At that time,
L.M. was living at 714 Washington Street, Allentown, Lehigh
County, Pennsylvania. She was living with [Appellant], his
mother (Frances), her mother, her two (2) sisters (N.D. and
J.M.), and her brother (D.H.). L.M.’s uncle and his family lived
with them for a period of time at this residence as well. Indeed,
at one time, there were fourteen (14) people living in the
residence.
During the time that L.M. lived at the residence on Washington
Street, [Appellant] frequently would touch her breasts under and
over her clothes. He also would frequently touch her vagina,
both over and under her clothes. By “touch”, L.M. explained that
[Appellant] would use his hand and his penis to glide over and
penetrate the inside of her vagina. This “touching” would occur
when [Appellant] was alone with L.M. in his bedroom, and
happened multiple times. [Appellant] instructed L.M. to do
certain things, such as touch his penis. L.M. testified that
[Appellant’s] penis was big and hard to the touch. In addition,
L.M. explained that she also “touched” [Appellant’s] penis with
her mouth. This occurred nearly every time. Even though L.M.
did not want to do such actions, she was afraid to say “no” to
her stepfather. She feared that [Appellant] would get mad and
exhibit an attitude and take his anger out on everyone around
him. L.M. did not report this “touching” to anyone, because she
did not think that anyone would believe her.
There were times when L.M.’s sister, N.D., was also present.
L.M. witnessed N.D. “touching” [Appellant’s] penis as to
[Appellant] instructed her to so do. On November 1, 2013, L.M.,
N.D. and their family moved to a residence located at 1739
Hanover Avenue, Allentown, Lehigh County, Pennsylvania. As on
Washington Street, L.M. and N.D. were living with [Appellant],
their mother, their younger sister, and their brother.
[Appellant’s] mother lived with them on Hanover Avenue as well.
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The “touching” continued to occur at the Hanover residence.
[Appellant] would frequently call L.M. and/or N.D. into his
bedroom, and make L.M. and/or N.D. touch his penis. He would
make them take off their clothes and he would touch L.M.’s
breast and butt. [Appellant] would glide over and penetrate
L.M.’s vagina with his penis. He would also rub his penis against
the outside of N.D.’s vagina. After he was “satisfied” and
ejaculated, he would wipe off the ejaculation.2
At times, when L.M. was 13 or 14 years old, and N.D. was 11 or
12 years old, [Appellant] had N.D. hold his penis with her hand
while L.M. put her mouth on [Appellant’s] penis. [Appellant]
also had N.D. put her mouth on his penis while L.M. held his
penis.
N.D. was also “touched” by [Appellant] when L.M. was not
present. N.D. specifically recounted that when she was 11 years
old, [Appellant] “touched” her and had her put his penis in her
mouth. [Appellant] had instructed her to take off her clothes
and he had pulled his pants down, but not all the way off.
[Appellant] touched her in her private parts using his hands and
his penis. Although he never penetrated her vagina, he would
rub his penis against her. N.D. testified that she did not want to
do such acts, but that [Appellant] offered her money to do them.
In November of 2014, N.D. confided in her best friend at school
about the “touching” that was going on with [Appellant]. She
mentioned it again to this friend in January of 2015. Thereafter,
on February 4, 2015, at approximately 7:39 A.M., L.M. sent her
aunt, Eraka Rivera Cruz, a text message, implying that someone
was “touching” her. When L.M. actually spoke with her aunt on
the telephone, she told her that [Appellant] had been touching
her. The aunt advised her to inform her mother of same. L.M.
took her aunt’s advice and told her mother. That day, both
[Appellant] and the mother picked L.M. up from school.
[Appellant] took L.M.’s cell phone when she entered the vehicle.
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2
According to L.M., [Appellant] had surgery on his penis in 2014, L.M.
indicated that after the surgery, [Appellant’s] penis was smaller and no
longer had the “skin” on it. Additionally, it was no longer hard. Even though
after the surgery [Appellant] was impotent and could not become erect, he
continued to glide his penis over the girls’ vaginas, but was no longer able to
penetrate L.M.
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Her mother yelled at her when they returned home. When N.D.
supported her sister’s account of what had been transpiring, her
mother yelled at her and slapped her. The next day, L.M.
borrowed a telephone from her friend at school and called her
aunt again. Her aunt notified the police of what L.M. had
confided in her, and subsequent medical examinations were
performed on L.M. and N.D.
Trial Court Opinion, 7/20/16 at 4-7 (citations and some footnotes omitted).
In December 2015, a jury trial commenced, after which Appellant was
found guilty of the aforementioned crimes. He was sentenced as outlined
above. Appellant timely filed a post sentence motion, which was denied by
the trial court in June 2016. Appellant timely appealed and filed a court-
ordered statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). The trial court issued a responsive statement.
Appellant raises the following issues for review:
A. Whether or not the evidence as presented was sufficient as a
matter of law to support the conviction for Rape of a Child,
two counts of Involuntary Deviate Sexual Intercourse with a
Person Less than 16 Years of Age, Aggravated Indecent
Assault, two counts of Corruption of Minors, and Indecent
Assault of the Person Less than 16 Years of Age when the
evidence that [Appellant] was the perpetrator or could of
done the acts alleged was questionable and uncertain?
B. Was the verdict against the weight of all the evidence in
regards to the proof of whether or not [Appellant] was guilty
of the charges?
C. Did the lower court err in denying [Appellant’s] request to
recall one of the victims to cross-examine her on alleged prior
inconsistent statements?
Appellant’s Brief at 9-10.
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Appellant purports to challenge the sufficiency of the evidence
presented at trial. “In order to develop a claim challenging the sufficiency of
the evidence properly, an appellant must specifically discuss the elements of
the crime and identify those which he alleges the Commonwealth failed to
prove.” Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super.
2014) (citing Commonwealth v. McDonald, 17 A.3d 1282, 1286 (Pa.
Super. 2011)).
While Appellant’s brief lists the five crimes he was convicted of, he
offers no analysis of any particular elements that compromise the charges
against him. See Appellant’s Br. at 14, 17-18. Appellant’s blanket
assertions that (1) the statements of the two victims were contradictory and
(2) there was no physical evidence in support thereof are insufficient. We
note that “such specificity is of particular importance in cases where, as
here, the appellant was convicted of multiple crimes each of which contains
numerous elements that the Commonwealth must prove beyond a
reasonable doubt.” Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.
Super. 2009). Accordingly, Appellant has waived this claim for lack of
development. Samuel, 102 A.3d at 1005; Pa.R.A.P. 2119(a).
Next, Appellant contends that the verdict is against the weight of the
evidence. See Appellant’s Br. at 18. Appellant suggests that his physical
limitations rendered him unable to commit the crimes. See id. at 19.
Appellant also contends that the abuse could not have happened due to the
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number of people residing in the household. Id. Appellant essentially
challenges the credibility of the victims. Id.
The following principles apply to our review of a weight of the evidence
claim:
The weight of the evidence is exclusively for the finder of
fact who is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses. An
appellate court cannot substitute its judgment for that of
the finder of fact. Thus, we may only reverse the . . .
verdict if it is so contrary to the evidence as to shock one’s
sense of justice.
Commonwealth v. Small, 741 A.2d 666, 672-73 (Pa. 1999).
Moreover, 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. Champney, 832 A.2d 403, 408 (Pa. 2003), cert.
denied, 542 U.S. 939, (2004) (most internal citations omitted). A trial
court's denial of a post-sentence motion based on a weight of the evidence
claim is the least assailable of its rulings. Commonwealth v. Nypaver, 69
A.3d 708, 717 (Pa. Super. 2013) (internal quotations omitted) (citing
Commonwealth v. Sanders, 42 A.3d 325, 331 (Pa. Super. 2012).
Furthermore,
“[w]hen the challenge to the weight of the evidence is predicated
on the credibility of trial testimony, our review of the trial court's
decision is extremely limited. Generally, unless the evidence is
so unreliable and/or contradictory as to make any verdict based
thereon pure conjecture, these types of claims are not
cognizable on appellate review.”
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Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa. Super. 2007)
(quoting Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (Pa. Super.
2004) (citation omitted)); see also Commonwealth v. Hankerson, 118
A.3d 415, 420 (Pa. Super. 2015) (noting that this Court may not re-assess
the credibility of a witness’ testimony when ruling on a weight of the
evidence claim).
Here, the fact finder was free to believe L.M. and N.D.’s testimony.
After a review of the testimony, we find that the testimony was not so
unreliable as to warrant a new trial. As such, we conclude that the trial
court did not abuse its discretion in finding the verdict was supported by the
weight of the evidence. Champney, 832 A.2d at 408.
Appellant’s final claim asserts that the lower court erred in denying his
request to recall N.D. to cross-examine her on prior inconsistent statements.
Questions concerning the admissibility of evidence are within the discretion
of the trial court and will only be reversed upon a showing that the court
abused its discretion. Commonwealth v. Johnson, 42 A.3d 1017, 1027
(Pa. 2012). “An abuse of discretion may not be found merely because an
appellate court might have reached a different conclusion, but requires a
result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will,
or such lack of support so as to be clearly erroneous.” Id. (quoting
Commonwealth v. Sherwood, 982 A.2d 483, 495 (Pa. 2009)).
The trial court reasoned as follows:
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[Appellant] contends that this [c]ourt erred in precluding N.D.
from being called back to the stand to testify on the defense side
of the case. Specifically, [Appellant] intended to recall N.D. to
impeach her credibility through the inconsistencies between her
trial testimony and her prior out-of-court forensic interview
statements. [Appellant’s] argument is legally flawed.
Initially this [c]ourt notes that Pennsylvania Rule of Evidence
613(a) provides in pertinent part:
Rule 613. Witness’s Prior Inconsistent Statement to Impeach
(a) Witness’s Prior Inconsistent Statement to Impeach
A witness may be examined concerning a prior
inconsistent statement made by the witness to
impeach the witness’ credibility.
Pa. R.E. 613(a). Therefore, in compliance with the law, this
[c]ourt indicated that it would allow N.D. to retake the witness
stand if, in fact, her statements were inconsistent.
Consequently, this [c]ourt requested that defense counsel set
forth on the record the alleged inconsistencies in her testimony.
Defense counsel represented to this [c]ourt that N.D. had stated
three (3) times during the audio recorded statement that she
provided to the forensic interviewer that [Appellant] had just
“laid his hands on her.” There was no mention of oral sex. In
contrast, at trial N.D. had testified that she performed oral sex
on [Appellant].
While at first blush these statements appear to be inconsistent,
upon further exploration by this [c]ourt, it was revealed that
these three (3) statements were taken out of context. These
three (3) statements were made at the beginning of the
audiotaped interview, but N.D. ultimately stated near the end of
her audio recorded interview that oral sex did occur. Both the
attorney for the Commonwealth and defense counsel
acknowledged that at the end of the audio recording, N.D. did
mention the occurrence of oral sex. Therefore, this [c]ourt
concluded that N.D.’s audio recorded statement had to be taken
as a whole for it not to be misleading or misrepresenting. Thus,
in light of N.D.’s complete audio recorded forensic interview
statement, this [c]ourt found there was no inconsistency that
[Appellant] could use to impeach her testimony. Accordingly,
this [c]ourt properly and legally precluded [Appellant] from
recalling N.D. for the purpose of impeaching her credibility.
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Trial Court Opinion at 9-11.
In review of the record, we discern no abuse of discretion in the trial
court’s ruling. See Johnson, 42 A.3d at 1027.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/19/2017
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