Com. v. Baca, J.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
JEREMY ELI BACA , :
:
Apellant :
: No. 410 MDA 2016
Appeal from the Judgment of Sentence December 21, 2015
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0000423-2015
BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED DECEMBER 27, 2016
Appellant, Jeremy Eli Baca, appeals from the Judgment of Sentence
entered December 21, 2015, in the Court of Common Pleas of Berks County.
After careful review, we conclude that (i) Appellant’s conviction for Indecent
Assault was properly graded as a third-degree felony (“F-3 Indecent
Assault”) where he pressed his penis against the victim’s mouth and thighs;
(ii) the jury’s verdict was not against the weight of the evidence; and (iii)
the trial court did not abuse its discretion when it sentenced Appellant to
consecutive sentences in the aggravated range. Accordingly, we affirm.
*
Retired Senior Judge assigned to the Superior Court.
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We summarize the relevant factual and procedural history as follows.
In 2010, Appellant, along with his wife and two children, moved into the
basement of his sister-in-law’s Berks County home. Appellant’s sister-in-law
lived on the first and second floor along with her then-husband and their
children, including the victim in this case, A.M.
The basement consisted, in part, of a bedroom and a living area with a
couch, a mattress, and a TV. Appellant would sleep in the living area, and
his wife would sleep in the bedroom. Appellant’s children usually slept in the
living area with Appellant. A.M. was close with her cousin, Appellant’s son,
and would often go to the basement to play with her cousin. At times, she
would also sleep downstairs with her cousin in the living area.
When A.M. was approximately eight years old, she spent the night in
the basement with her cousin and his family. Her cousin was an early riser,
and when she awoke, he was already upstairs in the main part of the house.
Appellant, however, was still in the living area with A.M., and he called her
down to the mattress where he was lying. Appellant then wrapped his arms
around A.M., took his penis out of his shorts, and began pushing A.M.’s head
down towards his genitals. Appellant attempted to force his penis into
A.M.’s mouth, pushing her mouth and lips against his penis in the process.
Appellant also rubbed his penis and fingers on A.M.’s thighs and tried to
force his penis down A.M.’s shorts.
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Appellant repeated this behavior on two to four subsequent occasions.
Each time, he would rub his penis and fingers on A.M.’s thighs. He also
attempted to force A.M. to touch his penis by prying her fist open.
A.M. did not immediately report Appellant’s abuse. At age eleven,
A.M. told her sister about the assaults, who then told her stepfather. A.M.’s
stepfather notified A.M.’s mother, who reported the assaults to police.
Appellant was arrested and charged with one count each of Criminal
Attempt to Commit Rape; Criminal Attempt to Commit Rape of a Child;
Criminal Attempt to Commit Involuntary Deviate Sexual Intercourse
(“IDSI”); Criminal Attempt to Commit IDSI with a Child; F-3 Indecent
Assault; Indecent Assault, graded as a first-degree misdemeanor; Indecent
Exposure; and Corruption of Minors.
Appellant elected to proceed by way of a jury trial, which commenced
on September 2, 2015. The Commonwealth withdrew the counts relating to
Criminal Attempt to Commit Rape and IDSI, as well as Indecent Assault,
graded as a first-degree misdemeanor. Following trial, the jury found
Appellant guilty of F-3 Indecent Assault; Indecent Exposure; and Corruption
of Minors.1 The jury made a specific finding that the Indecent Assault “was
committed by touching the victim’s sexual or intimate parts with
[Appellant’s] sexual or intimate parts[.]” Verdict Slip, filed 9/3/15. See
1
18 Pa.C.S. § 3126(a)(7); 18 Pa.C.S. § 3127(a); and 18 Pa.C.S. §
6301(a)(1)(ii), respectively.
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also 18 Pa.C.S. § 3126(b)(3)(iii). The jury acquitted Appellant on the
remaining charges.
On December 21, 2015, the trial court sentenced Appellant as follows:
1½ to 7 years of incarceration for F-3 Indecent Assault, 1 to 5 years of
incarceration for Indecent Exposure, and 1 to 3 years of incarceration for
Corruption of Minors. The trial court set all sentences to run consecutively,
for an aggregate sentence of 3½ to 15 years of incarceration.
Appellant filed post-sentence motions, which were granted, in part, to
permit him supervised contact with his own minor children, but otherwise
were denied.
Appellant timely appealed. Both Appellant and the trial court have
complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the following three issues.
1. Whether the evidence presented at trial was insufficient to
support a guilty verdict of F-3 Indecent Assault where the
evidence failed to establish, beyond a reasonable doubt, that the
Indecent Assault was committed by touching the victim’s sexual
or intimate parts with the sexual or intimate parts of [Appellant].
2. Whether the guilty verdicts against [Appellant] were contrary
to the weight of the evidence presented at trial in that the
testimony against [Appellant] was not credible.
3. Whether the trial court abused its discretion by sentencing
[Appellant] to an aggregate term of three and a half (3½) to
fifteen (15) years incarceration, in the aggravated range, which
was excessive when considering the protection of the public, the
gravity of the offense as it relates to the impact on the life of the
victim and the community, and the rehabilitative needs of
[Appellant].
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Appellant’s Brief at 7.
Sufficiency of the Evidence
Appellant first avers that the evidence was insufficient to support his
conviction for F-3 Indecent Assault because “the lips of the victim’s closed
mouth are not sexual parts” within the meaning of the grading portion of the
statute defining Indecent Assault. Appellant’s Brief at 15.
Evidentiary sufficiency is a question of law; thus, our standard of
review is de novo and our scope of review is plenary. Commonwealth v.
Diamond, 83 A.3d 119, 126 (Pa. 2013).
In determining whether the evidence was sufficient to support a
verdict, we view the evidence and all reasonable inferences to be drawn
therefrom in the light most favorable to the verdict winner, the
Commonwealth herein. Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.
Super. 2013) (en banc). Furthermore,
Evidence will be deemed sufficient to support the verdict when it
established each element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty, and may sustain its burden by means of
wholly circumstantial evidence. Significantly, we may not
substitute our judgment for that of the factfinder; if the record
contains support for the convictions they may not be disturbed.
Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005)
(citations and internal quotations omitted).
Indecent Assault is defined, in relevant part, as follows:
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(a) Offense defined.--A person is guilty of indecent assault if
the person has indecent contact with the complainant, causes
the complainant to have indecent contact with the person or
intentionally causes the complainant to come into contact with
seminal fluid, urine or feces for the purpose of arousing sexual
desire in the person or the complainant and:
...
(7) the complainant is less than 13 years of age;
18 Pa.C.S. § 3126(a)(7). In addition, indecent contact is defined as “[a]ny
touching of the sexual or other intimate parts of the person for the purpose
of arousing or gratifying sexual desire, in any person.” 18 Pa.C.S. § 3101.
Ordinarily, Indecent Assault committed on a complainant less than 13
years of age is graded as a misdemeanor of the first degree. However, it is
graded as a felony of the third degree where, inter alia, “[t]he indecent
assault was committed by touching the complainant's sexual or intimate
parts with sexual or intimate parts of the person.” 18 Pa.C.S. §
3126(b)(3)(iii).
The relevant statutes do not define or include a list of qualifying
“sexual or intimate parts.” As this Court has explained,
[t]he separate crime of indecent assault was established because
of a concern for the outrage, disgust, and shame engendered in
the victim rather than because of physical injury to the victim.
Due to the nature of the offenses sought to be proscribed by the
indecent assault statute, and the range of conduct proscribed,
the statutory language does not and could not specify each
prohibited act.
Commonwealth v. Provenzano, 50 A.3d 148, 153 (Pa. Super. 2012).
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It is clear that “sexual” and “intimate parts” are not limited to
genitalia. While interpreting the statute codifying Indecent Assault, this
Court has consistently made it clear that
[t]he language of the statutory section defining indecent contact
includes both “sexual” and “other intimate parts” as possible
erogenous zones for purposes of prosecution. Therefore, the
phrase “other intimate parts” cannot refer solely to genitalia, as
such a construction ignores the distinction between “sexual” and
“other intimate parts,” making the latter term redundant.
Commonwealth v. Capo, 727 A.2d 1126, 1127 (Pa. Super. 1999).
In the instant case, Appellant does not argue that the victim’s thighs
do not constitute an “intimate part” under Section 3126(b)(iii). Instead,
Appellant ignores the fact that A.M. testified that Appellant rubbed his penis
on her thighs and attempted to push his penis down her shorts. Appellant’s
conduct of rubbing his penis against A.M.’s thighs is sufficient in and of
itself to sustain a conviction for F-3 Indecent Assault. See
Commonwealth v. Fisher, 47 A.3d 155, 158 (Pa. Super. 2012) (“The
backs of the legs can be intimate parts of the body, just as the shoulders,
neck, and back were in Capo, [supra] when touched for the purpose of
arousing or gratifying sexual desire.”).
Moreover, we have previously held that the mouth is included within
the definition of “other intimate parts.” See Commonwealth v. Evans,
901 A.2d 528, 537 (Pa. Super. 2006) (holding that appellant's inserting his
tongue into the victim's mouth constituted Indecent Assault).
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Nonetheless, Appellant attempts to distinguish the instant case from
Evans, drawing a bright line between the inside of a person’s mouth and her
lips. We find this argument wholly unpersuasive. Mouths, including lips, are
both an intimate part of a person and a possible erogenous zone. See
Capo, supra, at 1127. Moreover, this Court has no doubt that having one’s
lips and mouth forcibly applied to another’s penis engenders the type of
“outrage, disgust, and shame” our legislature sought to prevent.
Provenzano, supra, at 153.
Therefore, we conclude that the evidence was sufficient to convict
Appellant of F-3 Indecent Assault where he used his penis, a sexual organ,
to forcibly touch his 8 year-old-victim’s “intimate parts,” namely, her mouth
and thighs.
Weight of the Evidence
Appellant next avers that the jury’s verdict was against the weight of
the evidence, averring that A.M.’s testimony was not credible because of her
delay in reporting the abuse and inconsistencies between her trial testimony
and her prior statements. Appellant’s Brief at 17.
When considering challenges to the weight of the evidence, we apply
the following precepts:
The weight of the evidence is exclusively for the finder of
fact, who is free to believe all, none or some of the
evidence and to determine the credibility of witnesses.
Appellate review of a weight claim is a review of the
exercise of discretion, not the underlying question of
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whether the verdict is against the weight of the evidence.
Because the trial judge has had the opportunity to hear
and see the evidence presented, an appellate court will
give the gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial court’s
determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting
or denying a new trial is the lower court’s conviction that
the verdict was or was not against the weight of the
evidence and that a new trial should be granted in the
interest of justice.
Commonwealth v. Talbert, 129 A.3d 536, 545-46 (Pa. Super. 2015)
(internal quotation marks and citations omitted).
“Resolving contradictory testimony and questions of credibility are
matters for the finder of fact.” Commonwealth v. Hopkins, 747 A.2d 910,
917 (Pa. Super. 2000). Further, “[i]n order for a defendant to prevail on a
challenge to the weight of the evidence, the evidence must be so tenuous,
vague and uncertain that the verdict shocks the conscience of the court.”
Talbert, supra at 546 (internal quotation marks and citation omitted). It is
well-settled that we cannot substitute our judgment for that of the trier of
fact. Id. at 545.
Appellant essentially asks us to reassess the credibility of the
witnesses and reweigh the testimony and evidence presented at trial.
Appellant’s Brief at 16-17. We cannot and will not do so. At trial, defense
counsel cross-examined A.M. about the inconsistencies that Appellant now
complains of on appeal, as well as her delay in reporting the assaults.
Nonetheless, the jury found credible A.M.’s testimony that Appellant sexually
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abused her. This verdict was not so contrary to the evidence as to shock the
court’s conscience, and the trial court properly denied Appellant’s weight of
the evidence claim.
Discretionary Aspects of Sentence
In his third issue, Appellant challenges the discretionary aspects of his
sentence. A challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right. See Commonwealth v. Hill,
66 A.3d 359, 363 (Pa. Super. 2013). Rather, where, as here, the appellant
has preserved the sentencing challenge for appellate review by raising it at
sentencing or in a timely post-sentence motion, the appellant must (1)
“include in his brief a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a
sentence[,]” pursuant to Pa.R.A.P. 2119(f); and (2) “show that there is a
substantial question that the sentence imposed is not appropriate under the
Sentencing Code.” Id. at 363-64.
In the instant case, Appellant filed a timely notice of appeal and a
timely post-sentence motion. He also included a separate Pa.R.A.P. 2119(f)
statement in his appellate brief. Moreover, Appellant’s claim—that the trial
court “failed to offer reasons for its sentence” and imposed an unreasonable
sentence while ignoring the sentencing guidelines and relevant sentencing
criteria—presents a substantial question for our review. See
Commonwealth v. Scassera, 965 A.2d 247, 250 (Pa. Super. 2009)
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(holding that a claim that the sentencing court failed to consider the
applicable sentencing guidelines, prior to exceeding them, presents a
substantial question); Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa.
Super. 2008) (holding that an “[a]ppellant’s contention that the sentencing
court exceeded the recommended range in the Sentencing Guidelines
without an adequate basis raises a substantial question for this Court to
review.”).
Accordingly, we turn to the merits of Appellant’s claim, mindful of our
standard of review:
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
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. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation
omitted).
Where a trial court imposes a sentence outside of the sentencing
guidelines, 42 Pa.C.S. § 9721(b) requires the trial court to provide, in open
court, a “contemporaneous statement of reasons in support of its sentence.”
Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012). To
satisfy the requirements of Section 9721(b), the trial court must:
demonstrate on the record, as a proper starting point, its
awareness of the sentencing guidelines. Having done so, the
sentencing court may deviate from the guidelines, if necessary,
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to fashion a sentence which takes into account the protection of
the public, the rehabilitative needs of the defendant, and the
gravity of the particular offense as it relates to the impact on the
life of the victim and the community, so long as it also states of
record the factual basis and specific reasons which compelled it
to deviate from the guideline range.
Id. (brackets and citation omitted).
The on-the-record disclosure requirement does not require the trial
court to make “a detailed, highly technical statement.” Commonwealth v.
Hunzer, 868 A.2d 498, 514 (Pa. Super. 2005). Where the trial court has
the benefit of a presentence investigation (“PSI”), our Supreme Court has
held that “it is presumed that the court is aware of all appropriate
sentencing factors and considerations, and that where the court has been so
informed, its discretion should not be disturbed.” Commonwealth v.
Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) (discussing
Commonwealth v. Devers, 546 A.2d 12, 18-19 (Pa. 1988)). Where the
trial court has reviewed the PSI, it may properly “satisfy the requirement
that reasons for imposing sentence be placed on the record by indicating
that he or she has been informed by the [PSI]; thus properly considering
and weighing all relevant factors.” Ventura, supra at 1135 (citation
omitted).
Finally, where the trial court deviates above the guidelines, this Court
may only vacate and remand a case for resentencing if we first conclude that
“the sentencing court sentenced outside the sentencing guidelines and the
sentence is unreasonable.” 42 Pa.C.S. § 9781(c)(3). Although the
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Sentencing Code does not define the term “unreasonable,” our Supreme
Court has made clear that “rejection of a sentencing court's imposition of
sentence on unreasonableness grounds [should] occur infrequently, whether
the sentence is above or below the guideline ranges, especially when the
unreasonableness inquiry is conducted using the proper standard of review.”
Commonwealth v. Walls, 926 A.2d 957, 964 (Pa. 2007).
In the instant case, the trial court sentenced Appellant to a minimum
sentence at or near the top of the Sentencing Guidelines’ aggravated range,
and to a maximum sentence at the statutory limit. The trial court also set
those sentences to run concurrent to one another. Although these
sentences fell outside of the standard sentencing range, we do not agree
with Appellant that the trial court abused its discretion, failed to state
sufficient reasons, or otherwise erred in imposing an aggregate sentence of
3½ to 15 years of incarceration, with credit for 348 days of time served.
Prior to imposing sentence, the trial court made a lengthy statement,
on the record, explaining its decision:
All right. I’ve had an opportunity to review the relevant
materials. I’ve reviewed, of course, the PSI. I’ve taken that into
account.
I’ve taken into account the testimony that I heard during the
course of the trial of this case.
I have taken into account the fact that the Sexual Offender
Assessment Board has determined that the defendant does not
meet the statutory criteria to be classified as a sexually violent
predator.
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I’ve taken into account also especially the jury’s verdict, which is
paramount. And the jury’s verdict was to the effect that the
defendant was convicted of these serious offenses, but he was
not guilty of even more serious offenses [namely, Criminal
Attempt to Commit Rape of a Child and Criminal Attempt to
Commit IDSI with a Child]. The Court cannot impose sentence
as though that is not what occurred.
So I’ve had to take into account also what the Sentencing
Guidelines provide here. And one of the most important
components, of course, of the Sentencing Guidelines deals with
the prior record of the defendant. And the defendant’s prior
record here is not particularly serious, both in the number of
offenses and in the nature of them, which generates a prior
record score of one.
I have taken into account also the nature of this case. These
cases are among the most troubling that we have. Damage is
done, families sometimes completely destroyed. And there is
not a thing that I can do sitting here to change that. No
sentence that I impose can repair those damages. It simply is
not possible for me to do so. So I must look to the question of
what the sentence ought to be by examining the provisions of
the Sentencing Code, the Sentencing Guidelines.
And I’ve taken into account also not only the testimony I heard
during the course of the trial but [the victim’s mother’s]
testimony here today with respect to the impact that this has
had on the family. I will tell you that I am not unhappy that the
victim is not here today. It’s often been my view that the more
times that the victims have been exposed to these surroundings
even at this stage of the proceedings where sentence is about to
be imposed, that the effect on them I believe is prolonged by
more exposures here in the court. That does not mean I’m not
taking into account the victim and the victim’s circumstances.
Our law recognizes that in cases of this nature, rehabilitative
needs are often great. And the law provides both specifically
through the SORNA process as well as through the parole
process that counseling and treatment are necessary
components and the Court need not specifically delinate what
they shall be. The statute itself will set forth the registration
requirements, and the Bureau of Corrections and the Board of
Probation and Parole have the largest hand in determining what
the nature of treatment and counseling shall be.
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...
The sentences imposed are in the aggravated range although the
sentence imposed [for F-3 Indecent Assault] is not at the top of
the aggravated range, but it is a sentence that is under the
statutory maximums. Under the guidelines that the court must
examine, I believe that this is a harsh sentence under the
circumstances for the offenses for which the defendant was
convicted. It will require supervision for many years. And I
believe that under the circumstances, it’s an appropriate
sentence.
N.T., Sentencing, 12/21/15, at 16-20.
Based on all of the foregoing, we conclude that the trial court did not
abuse its discretion in imposing a sentence in the aggravated range of the
sentencing guidelines. Although the trial court set the sentences imposed on
each count to run consecutively, the aggregate sentence was not
unreasonable. Moreover, the trial court, having considered Appellant’s PSI,
the results of his Sexual Offender Assessment, and other pertinent
aggravating and mitigating information, did not abuse its discretion in
sentencing Appellant to an aggregate sentence of 3½ to 15 years of
imprisonment. Thus, Appellant’s argument to the contrary lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/27/2016
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