Com. v. Guevara, M.

J-S54023-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARIO ABLE GUEVARA :
:
Appellant : No. 342 MDA 2019
Appeal from the Judgment of Sentence Entered October 9, 2018
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0005700-2017
BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 12, 2019
Mario Able Guevara appeals from the judgment of sentence, entered in
the Court of Common Pleas of Berks County, after a jury convicted him of
involuntary deviate sexual intercourse (IDSI),1 intimidation of a victim,2
sexual assault,3 indecent assault (forcible compulsion),4 indecent assault (lack
of consent),5 and false imprisonment.6 Upon careful review, we affirm.
____________________________________________
1 18 Pa.C.S.A § 3123(a)(1).
2 18 Pa.C.S.A. § 4952.
3 18 Pa.C.S.A. § 3124.1.
4 18 Pa.C.S.A. § 3126(a)(2).
5 18 Pa.C.S.A. § 3126(a)(1).
6 18 Pa.C.S.A. § 2903(a).
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Between January of 2014 and October of 2017, Guevara supervised
X.P.7 at Witman’s Cleaning Service (Whitman’s). X.P.’s duties included
cleaning a warehouse in Fleetwood, Pennsylvania. On October 6, 2017, while
X.P. was working alone in the warehouse, Guevara sneaked behind X.P. and
grabbed her chest. X.P. told Guevara he was scaring her and demanded he
leave her alone. Initially, he complied. X.P. resumed her work and began
cleaning a warehouse bathroom.
While X.P. cleaned a toilet, Guevara entered the bathroom, shut the
door, told X.P. there were no cameras, and bear hugged her. X.P. freed her
hands and hit Guevara. He responded by pinning her against the counter with
one hand, pulling her blouse down with the other, and biting her breast.
Guevara then forced one hand inside X.P.’s underwear and began removing
her pants. Guevara then placed his mouth on her vagina. X.P. freed herself
when Guevara attempted to use both hands to perform a sex act.
Outside the bathroom, X.P. accused Guevara of rape, to which he
responded by saying no one would believe her because he did not penetrate
her. He further stated no one would believe her without proof, and that she
would lose her job. Once Guevara left the warehouse, X.P. went straight home
and told her daughter what transpired in the warehouse. Over her daughter’s
protests, X.P. refrained from contacting the police because she believed she
would lose her job, as Guevara was married to the niece of Whitman’s owner.
____________________________________________
7 We refer to the victim by her initials.
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She also knew Guevara was aware she needed her job at Whitman’s to support
herself and her children. X.P. did not report the incident to the police until
after confronting Guevara and recording their conversation on her cell phone.
At the conclusion of a three-day trial on June 27, 2018, a jury convicted
Guevara of the above-mentioned offenses. The court sentenced Guevara to
an aggregate term of seven-and-a-half to twenty years’ incarceration.
Guevara was also required to register with the Pennsylvania State Police for
life, pursuant to the Sexual Offender Registration and Notification Act
(“SORNA”).8 On October 15, 2018, Guevara timely filed post-sentence
motions, which were denied by operation of law on March 20, 2019. In the
interim, on February 21, 2019, Guevara timely filed the instant notice of
appeal.9 On March 14, 2019 Guevara filed a court-ordered Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal.
Guevara raises the following issues for our review:
1. Whether the Commonwealth failed to present sufficient
evidence to support a guilty verdict for [i]ntimidation of
[w]itnesses or [v]ictims as no evidence was presented at
trial to show that [Guevara] used/threatened force,
violence, or deception in any alleged efforts to intimidate
the alleged victim to support [t]he grading as a felony of the
first degree[?]
____________________________________________
8 42 Pa.C.S.A. § 9799.55(b)(2).
9Notices of appeal “filed after the announcement of a determination but before
the entry of an appealable order shall be treated as filed after such entry and
on the day thereof.” Pa.R.A.P. 905(a)(5).
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2. Whether the trial court erred and abused its discretion when
it instructed the jury that “oral contact with female genitalia
is sufficient to support the penetration requirement for
IDSI[,]” which allowed the jury to convict [Guevara] of both
IDSI and sexual assault based upon something less than the
required element that [Guevara] penetrated the
complainant’s vagina[?]
3. Whether the trial court erred by entering guilty verdicts as
to the charges of IDSI, [i]ntimidation of [w]itness/[v]ictim,
[s]exual assault, [i]ndecent [a]ssault—[f]orcible
[c]ompulsion, [i]ndecent [a]ssault—[l]ack of [c]onsent, and
[f]alse imprisonment as the verdicts were against the
weight of the evidence, where the alleged victim’s testimony
was not credible and contradicted by other evidence
admitted during trial[?]
4. Whether the trial court erred as a matter of law and imposed
an illegal sentence of lifetime sex offender registration as
the requirements of [SORNA] are punitive and the statutory
maximum sentence for the registerable offense, IDSI, is 20
years[?]
Brief of Appellant, at 12–14.
In his first claim, Guevara contends his conviction for victim intimidation
rests on insufficient evidence, arguing his statements “that no one would
believe [X.P] if she reported the incident and that she would lose her job if
she made the claim without proof” did not demonstrate that he “obstruct[ed],
impede[d], impair[ed], prevent[ed] or interfere[d] with the administration of
justice.” Brief of Appellant, at 24.
We evaluate challenges to the sufficiency of the evidence under the
following, well-established standard:
We review claims regarding the sufficiency of the evidence by
considering whether, viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
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evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. Further, a conviction may be
sustained wholly on circumstantial evidence, and the trier of fact—
while passing on the credibility of the witnesses and the weight of
the evidence—is free to believe all, part, or none of the evidence.
In conducting this review, the appellate court may not weigh the
evidence and substitute its judgment for the fact-finder.
Commonwealth v. Strafford, 194 A.3d 168, 174 (Pa. Super. 2018)
(citations and quotations omitted).
The Crimes Code, in relevant part, defines intimidation of witnesses or
victims as follows:
§ 4952. Intimidation of witnesses or victims
(a) Offense defined.--A person commits an offense if, with the
intent to or with the knowledge that his conduct will obstruct,
impede, impair, prevent or interfere with the administration of
criminal justice, he intimidates or attempts to intimidate any
witness or victim to:
(1) Refrain from informing or reporting to any law
enforcement officer, prosecuting official or judge concerning
any information, document or thing relating to the
commission of a crime.
18 Pa.C.S.A. § 4952(a)(1).
Further, we observe:
Actual intimidation of a witness is not an essential element of the
crime. The crime is committed if one, with the necessary mens
rea, “attempts” to intimidate a witness or victim[.] The trier of
the facts, therefore, could find that appellant attempted to
intimidate his accuser and that he did so intending or, at least,
having knowledge that his conduct was likely to, impede, impair
or interfere with the administration of criminal justice[.] The
Commonwealth is not required to prove mens rea by direct
evidence. Frequently such evidence is not available. In such
cases, the Commonwealth may rely on circumstantial evidence.
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Commonwealth v. Beasley, 138 A.3d 39, 48 (Pa. Super. 2016); see also
Commonwealth v. Von Evans, 163 A.3d 980, 986 (Pa. Super. 2017) (“[T]he
factfinder may consider the nature of the underlying crime in evaluating the
totality of the circumstances to determine whether the defendant intended to
induce or to intimidate a witness from not testify at the trial for the underlying
crime[.]”).
Prior to X.P.’s assault on October 6, 2017, Guevara knew X.P. provided
the sole source of financial support for her children. N.T. Trial, 6/25/18, at
97–98. Guevara was also aware X.P. knew he was related to Whitman’s owner
by marriage. See id. (recounting prior incident where Guevara’s wife
threatened to have her aunt fire X.P. after Guevara made unsolicited advances
towards X.P.). Immediately after the assault, Guevara repeatedly told X.P.
no one would believe her, specifically stating “[n]o one is going to believe you
because I didn’t penetrate you.” Id. at 96. Critically, he further told X.P.
“[she] didn’t have any proof, and [she] was going to lose [her] job.” Id. at
97. These statements so unnerved X.P., she refused to report the incident
until after recording a conversation with Guevara. Id. at 100–103.
The circumstances surrounding the assault of X.P.—including averments
that no one would believe her, that she lacked proof, and that she would lose
her job—clearly evince Guevara’s intent to intimidate X.P. such that she would
“[r]efrain from . . . reporting to any law enforcement officer . . . any
information . . . relating to the commission of a crime.” 18 Pa.C.S.A. §
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4925(a)(1); see Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015)
(finding history of appellant’s threatening behavior towards his wife coupled
with demands not to testify rendered furnished sufficient evidence under
section 4952). Consequently, Guevara’s conviction for victim intimidation
clearly rests upon sufficient evidence. See Doughty, supra at 958.
Next, Guevara argues the trial court instructing the jury that “‘[o]ral
contact with female genitalia is sufficient to support the penetration
requirement of IDSI’” was an abuse of discretion, because it eliminated the
Commonwealth’s burden to prove penetration. Brief of Appellant, at 25
(quoting N.T. Trial, 6/27/18, at 130).
Preliminarily, we examine whether Guevara has preserved his claim on
appeal. Objections to jury instructions must first be made “beyond the
hearing of the jury” before “the jury retires to deliberate.” Pa.R.Crim.P.
647(C). However, to preserve an objection raised during a charging
conference, trial counsel must renew his or her objection after the offending
instruction is offered by the court to the jury. See Commonwealth v.
Parker, 103 A.3d 17, 29–30 (Pa. Super. 2014) (“Appellant has . . . waived
his objection to the jury instructions because he failed to object after the jury
had been charged.”). Our Supreme Court explicated this requirement as
follows:
Although obligating counsel to take this additional step where a
specific point for charge has been rejected may appear
counterintuitive, as the requested instruction can be viewed as
alerting the trial court to a defendant’s substantive legal position,
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it serves the salutary purpose of affording the court an opportunity
to avoid or remediate potential error, thereby eliminating the need
for appellate review of an otherwise correctable issue.
Commonwealth v. Pressley, 887 A.2d 220, 224 (Pa. 2005).
Instantly, during the charging conference, Guevara’s trial counsel
objected to the Commonwealth’s proposed jury amendment concerning the
definition of penetration in the context of IDSI. N.T. Trial, 7/26/18, at 71–74.
The court instructed the jury on the elements of IDSI, in relevant part, as
follows:
Deviate sexual intercourse occurs if a person’s tongue penetrates
the sexual organ of a woman. For all forms of deviate sexual
intercourse, the slightest degree of penetration is sufficient, and
no emission of semen is required. Oral contact with female
genitalia is sufficient to support the penetration requirement for
involuntary deviate sexual intercourse.
Id. at 130. When the court asked if counsel had anything to add, Guevara’s
trial counsel stated, “[n]o, Your Honor.” As counsel failed to object after the
court instructed the jury, his second claim is consequently waived. Parker,
supra at 29–30.
Third, Guevara argues his convictions rest on weak and contradictory
evidence, rendering the jury’s verdict against the weight of the evidence. Brief
of Appellant, 27–28. Specifically, he claims photos on X.P.’s cell phone, which
show her working as a bartender after the assault, are inconsistent with
“someone who was recently the victim of a crime.” Id. at 28.
We review the trial court’s exercise of discretion in ruling on the weight
claim, not the underlying question of whether the verdict was against the
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weight of the evidence. Commonwealth v. Champney, 832 A.2d 403, 408
(Pa. 2003). It is not our role, as a reviewing court, to reweigh the evidence
and substitute our judgment for that of the fact-finder. Commonwealth v.
Mitchell, 902 A.2d 430, 449 (Pa. 2006). Where the challenge to the weight
of the evidence is predicated on the credibility of trial testimony, our review
is extremely limited; unless the evidence is so unreliable “as to make any
verdict based thereon pure conjecture, [such claims] are not cognizable on
appellate review.” Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super.
2009). We may only grant relief if the trial court’s verdict is “so contrary to
the evidence as to shock one’s sense of justice.” Champney, supra at 408.
In the Honorable Patrick T. Barrett’s Rule 1925(a) opinion, he stated
“[a] witness’s credibility is solely for the jury to determine[,]” and
consequently, he refused to “second guess the verdicts[,] as the jury’s
determinations are not so contrary to the evidence as to shock one’s sense of
justice.” Rule 1925(a) Opinion, 5/23/19, at 8. We agree. At trial, the jury
heard X.P.’s testimony regarding the photos. N.T. Trial, 7/25/18, at 263–66.
X.P. stated she occasionally tended bar at “Jet Set,” but that she could not
remember if she went to work at Jet Set after being assaulted. See id. at 266
(“I don’t remember if I went to work after I was assaulted, but if I would have
had to go to work, I would have gone to work.”). Not only are we unable to
re-evaluate X.P.’s credibility, we are unsure as to how the existence of these
photos in any way contradicts X.P.’s testimony. Consequently, we cannot find
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Judge Barrett erred or abused his discretion in denying Geuvara’s weight
claim. Champney, supra at 408.
Finally, Guevara claims the trial court erred as a matter of law by
ordering him to register as a sex offender for life under SORNA. Brief of
Appellant, at 28–29. Guevara argues his sentence is illegal because it requires
a sexual offender to register for a period that exceeds the statutory maximum
sentence for the offense of which he was convicted. Id. at 29.
A sentence is illegal where it exceeds statutory limits. See
Commonwealth v. Bradley, 834 A.2d 1127 (Pa. 2003). This Court has
repeatedly held “a sentencing requirement for a defendant to register as a
sexual offender for a period of time exceeding the lawful statutory maximum
for his offense is not illegal.” Commonwealth v. Martin, 205 A.3d 1247,
1250 (Pa. Super. 2019); see Commonwealth v. Bricker, 198 A.3d 371, 377
(Pa. Super. 2018); see also Commonwealth v. Strafford, 194 A.3d 168,
173 (Pa. Super. 2018). Rather,
SORNA’s registration requirements are an authorized punitive
measure separate and apart from Appellant’s term of
incarceration. The legislature did not limit the authority of a court
to impose registration requirements only within the maximum
allowable term of incarceration; in fact, the legislature mandated
the opposite and required courts to impose registration
requirements in excess of the maximum allowable term of
incarceration.
Bricker, supra at 377 (quoting Strafford, supra at 173). Accordingly,
Guevara’s sentence is not illegal, and his final claim fails.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/12/2019
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