Com. v. Hernandez, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
JOSE ARTURO ESQUIVEL :
HERNANDEZ :
: No. 425 WDA 2019
Appellant :
Appeal from the Judgment of Sentence Entered February 5, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0007825-2018
BEFORE: SHOGAN, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 25, 2020
Appellant, Jose Arturo Esquivel Hernandez, appeals from the February
5, 2019 judgment of sentence entered in the Allegheny County Court of
Common Pleas. We affirm.
The trial court summarized the facts of the crime, as follows:
With the exception of evidence related to consent, the
following facts were uncontested at trial. Victim A.B. is married
to Appellant’s brother[,] and they have known each other for
roughly fourteen (14) years. . . . [O]n the evening of Saturday,
April 21, 2018, Appellant and Christina Sajewski, mother of
Appellant’s child, picked up A.B. to go out drinking and dancing at
club Insomnia. They stayed until closing and the three (3) of them
returned to A.B.’s apartment sometime between 2:00 a.m. and
3:00 a.m. Appellant testified that he consumed “a lot” of tequila
and more than ten (10) beers while at the club and was so
intoxicated that he passed out at A.B’s apartment. A.B., who was
also intoxicated, continued to drink tequila with Christina after
they arrived at her apartment, while Appellant was seemingly
asleep in a chair at the dining room table. Appellant testified that
prior to falling asleep at A.B’s apartment[,] he recalled seeing her
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with two (2) bottles of tequila. Having spent a long night drinking,
A.B. told Christina that she was going to bed. Christina was trying
to wake Appellant to go home when A.B. headed to her bedroom
and changed into pajamas. Neither Appellant or the victim recall
any other parts of those early morning hours until they both woke
up in A.B.’s bed. It was not until 10:00 a.m., after being awoken
by a phone call, that A.B. realized Appellant was asleep in her bed
and her pajama pants were off, but her underwear was on. In
disbelief, she lifted the bed covers to find that Appellant was naked
from the waist down. Reacting to what she was feeling and
seeing, A.B. took a few pictures of him, explaining to the jury,
“this cannot be true,” “I need to take a couple of pictures.” A.B.
left the bed and went into her bathroom, at which time felt pain
to her buttocks and discomfort in her vagina as if she had had
intercourse. She was in the shower when Appellant told her that
Christina was picking him up and he was leaving. A.B. spent the
rest of the day crying, feeling bad about what must have
happened between her and Appellant. On Monday, April 23, 2018,
A.B. confided in a friend who assisted her in reporting the incident
to police. A.B. also went to a hospital where a rape kit was
administered. As part of the investigation, forensic testing
revealed a DNA match between stains found in A.B.’s underwear
and Appellant.
Trial Court Opinion, 7/25/19, at 3–4 (footnotes omitted).
Following a three-day jury trial, Appellant was convicted of one count of
sexual assault, 18 Pa.C.S. § 3124.1., and acquitted of one count of rape of an
unconscious person, 18 Pa.C.S. § 3121(a)(3). On February 5, 2019, the trial
court sentenced Appellant to four to eight years of imprisonment. Appellant
filed a timely post-sentence motion, which the trial court denied on February
19, 2019. Appellant filed a timely notice of appeal, and both Appellant and
the trial court complied with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
I. To prove sexual assault here, the Commonwealth must prove
beyond a reasonable doubt [Appellant] engaged in sexual
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intercourse with the complainant without the complainant’s
consent. The testimony showed that neither [Appellant] nor
[A.B.] could remember the night they had sex or the
circumstances leading up to or during the sexual encounter.
Accordingly:
Did the Commonwealth fail to present sufficient evidence of
[A.B.’s] lack of consent to convict [Appellant] of sexual assault?
II. Whether the trial court’s sentence was illegal where the trial
court failed to make a RRRI finding on the record[?]
III. Whether the trial court abused its discretion by imposing an
excessive, non-individualized sentence under the circumstances
to the exclusion of [Appellant’s] mitigating lack of prior record,
employment circumstances, and his victimization[?]
Appellant’s Brief at 5.
Appellant notes that both he and A.B. are Spanish speaking-Mexican
immigrants, who required Spanish-to-English translators to testify.
Appellant’s Brief at 6. “At the time of trial, [Appellant] had a U-Visa as a
victim of domestic violence or another serious crime, and [A.B.] was in the
process of seeking a U-Visa due to the pending case. Id. at 9.1
Appellant first argues that the Commonwealth failed to present sufficient
evidence of A.B.’s lack of consent to sexual intercourse with Appellant.
Appellant’s Brief at 5. We note that in both his Pa.R.A.P. 1925(b) statement
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1 Congress passed legislation in 2000 that created a new nonimmigrant visa
classification—the U-Visa—within the Immigration and Nationality Act. “It is
a temporary legal status offered to victims of rape and other specified crimes
who have cooperated, or are likely to cooperate, in the investigation and
prosecution of those crimes.” Contreras Aybar v. Sec’y United States
Dep't of Homeland Sec., 916 F.3d 270, 272 (3d Cir. 2019).
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filed in the trial court and in his Statement of Questions Involved in his
appellate brief, pursuant to Pa.R.A.P. 2116, Appellant challenged the
sufficiency of the evidence in the record relating only to A.B.’s lack of consent
to sexual intercourse. Appellant’s attempt to expand the issue on appeal to
include an allegation of cultural and gender bias and a claim that his inability
to use his own intoxication as a defense violated due process, is rejected as
waived. Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and
cannot be raised for the first time on appeal”).
Commonwealth v. Bradley, 69 A.3d 253 (Pa. Super. 2013), supports
waiver herein, as well. In Bradley, the appellant raised a sufficiency
challenge to his conviction for aggravated assault in his Pa.R.A.P. 1925(b)
statement, asserting that the record did not include evidence that he acted
intentionally, knowingly, or recklessly. Id. at 256. On appeal, Bradley
asserted additionally that his use of force in breaking his daughter’s arm was
justified. We held that argument waived, stating:
Although Rule 1925(b) indicates that “each error identified in the
[Rule 1925(b)] Statement will be deemed to include every
subsidiary issue contained therein which was raised in the trial
court,” it also directs that “issues not included in the Statement
and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.” Pa.R.A.P. 1925(b)(4)(v), (vii). In
the matter at hand, the error identified in Bradley’s Rule 1925(b)
Statement may not be deemed to include his appellate brief’s
Section 509 claim as a “subsidiary issue contained therein which
was raised in the trial court,” as the Section 509 issue cannot be
construed as subsidiary, and was not raised before the trial court
in any manner. As such, the Section 509 claim is waived for
purposes of appeal. Pa.R.A.P. 1925(b)(4)(vii). See also
Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super.
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2011) (“The Rule 1925(b) statement must be ‘specific enough for
the trial court to identify and address the issue an appellant wishes
to raise on appeal.’”) (citation omitted), appeal denied, 613 Pa.
642, 32 A.3d 1275 (2011).
Id. at 256. Similarly, in the instant case, the only aspect of the issue that
was preserved below and in Appellant’s Statement of the Questions Involved
in his brief is the assertion that the evidence of record is insufficient to prove
that A.B. did not consent to sexual intercourse.
Thus, Appellant’s first issue assails the sufficiency of the evidence for
his conviction of sexual assault. In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted at trial and all reasonable
inferences drawn therefrom, viewed in the light most favorable to the
Commonwealth as verdict winner, were sufficient to prove every element of
the offense beyond a reasonable doubt. Commonwealth v. Green, 203 A.3d
250, 253 (Pa. Super. 2019), appeal denied, 216 A.3d 1036, 54 WAL 2019 (Pa.
July 30, 2019). “[T]he facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence.”
Commonwealth v. Colon-Plaza, 136 A.3d 521, 525–526 (Pa. Super. 2016)
(quoting Commonwealth v. Robertson-Dewar, 829 A.2d 1207, 1211 (Pa.
Super. 2003)). It is within the province of the fact-finder to determine the
weight to be accorded to each witness’s testimony and to believe all, part, or
none of the evidence. Commonwealth v. Tejada, 107 A.3d 788, 792–793
(Pa. Super. 2015). The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial evidence.
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Commonwealth v. Mucci, 143 A.3d 399, 409 (Pa. Super. 2016). Moreover,
as an appellate court, we may not re-weigh the evidence and substitute our
judgment for that of the fact-finder. Commonwealth v. Rogal, 120 A.3d
994 (Pa. Super. 2015).
In the instant case, the jury convicted Appellant of sexually assaulting
A.B. in violation of 18 Pa.C.S. § 3124.1, which provides as follows:
§ 3124.1. Sexual assault
Except as provided in section 3121 (relating to rape) or 3123
(relating to involuntary deviate sexual intercourse), a person
commits a felony of the second degree when that person engages
in sexual intercourse or deviate sexual intercourse with a
complainant without the complainant’s consent.
18 Pa.C.S. § 3124.1.
Appellant argues that because A.B. testified to having no memory of
intercourse or the events immediately preceding it, “there was no evidence of
a lack of consent to have intercourse let alone how the sexual intercourse was
initiated.” Appellant’s Brief at 17. Thus, he asks that his conviction be
reversed and his judgment of sentence vacated. Id.2
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2 Appellant also presents, for purposes of “preservation,” the claim that A.B.’s
diminished state “defeated the element of lack of consent, and therefore his
conviction for sexual assault should be reversed and his judgment of sentence
vacated,” even though this claim “has been foreclosed by the Pennsylvania
Supreme Court in Commonwealth v. Buffington, 828 A.2d 1024 (Pa.
2003), and Commonwealth v. Widmer, 744 A.2d 745 (Pa. 2000).”
Appellant’s Brief at 27. Appellant contends:
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The Commonwealth maintains that it established that A.B. did not
consent to sexual intercourse. Consent, as used in the Crimes Code, is defined
as follows:
§ 311. Consent
(a) General rule.--The consent of the victim to conduct charged
to constitute an offense or to the result thereof is a defense if such
consent negatives an element of the offense or precludes the
infliction of the harm or evil sought to be prevented by the law
defining the offense.
* * *
(c) Ineffective consent.--Unless otherwise provided by this title
or by the law defining the offense, assent does not constitute
consent if:
* * *
(2) it is given by a person who by reason of youth,
mental disease or defect or intoxication is manifestly
unable or known by the actor to be unable to make a
reasonable judgment as to the nature or harmfulness
of the conduct charged to constitute the offense;
18 Pa.C.S. § 311(a), (c)(2).
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In a case such as this, precedent states that [A.B.’s]
intoxication, paired as it was with her complete memory loss,
established her unconscious state and automatically established
that she could not consent. Buffington, 828 A.2d at 1032;
Erney, 698 A.2d at 59. However, this case presents the question
of how to address the element of lack of consent where both
parties exhibit a complete loss of memory . . . .”
Appellant’s Brief at 32. He admits that this issue “has been foreclosed by
precedent finding that intoxication and a lack of memory by the complainant
is sufficient to show they were unable to consent and supports a finding of
guilt.” Id. at 34; Appellant’s Reply Brief at 3 n.1.
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The Commonwealth points to A.B.’s testimony that while she could not
remember what happened, she was aware that intercourse occurred because
she experienced genital discomfort of the type she has after having
intercourse with her husband. Commonwealth’s Brief at 15 (citing N.T.,
9/8/18, at 91). A.B. stated that her husband had been deported months ago,
but she recalled that type of discomfort. Id. As well, Appellant’s DNA was on
her underwear, which A.B. explained had been pushed to the side. N.T.,
9/8/18, at 70–71, 92. A.B. also testified that she would never consent to sex
with her brother-in-law, and that Appellant previously had become intoxicated
and laid down in complainant’s bed with her, without her permission.
Commonwealth’s Brief at 16 (citing N.T., 9/9/18, at 33, 45). The
Commonwealth maintains that while Appellant disagreed with A.B.’s
testimony about the prior incident, “the jury was free to reject his testimony;
especially given that he testified that he knew which bedroom belonged to the
complainant.” Id. at 17. Thus, the Commonwealth submits that A.B. was
highly intoxicated and was unable to consent to sexual intercourse.
Commonwealth Brief at 18.
In resolving this issue, we rely on the thorough explanation of the trial
court, which held that the Commonwealth presented sufficient evidence that
A.B. did not consent to sexual intercourse, as follows:
A review of the record, with all reasonable inferences given
to the Commonwealth as verdict winner, demonstrates that there
was sufficient evidence for the element of non-consent to support
the conviction of Sexual Assault. Both parties acknowledged a
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night of excessive drinking at the club, and that the victim
consumed more alcohol after she got home. Both reached a level
of intoxication that caused each to be incapable of recalling the
events between the respective times they fell asleep and woke up
later that morning. As the evidence supports that at all relevant
times throughout the assault the victim was impaired physically
and mentally, she lacked the capacity to consent. See
Commonwealth v. Diaz, 152 A.3d 1040 (Pa. Super. 2016) (Court
affirmed the conviction for Sexual Assault where the victim
testified she was so intoxicated that she was “blacking in and out”
during the assault. The Court determined that the evidence was
sufficient to establish that Diaz sexually assaulted the victim while
she was unconscious and without her consent as she was at all
relevant times in such impaired physical and mental condition so
as to be unable to knowingly consent such that her submission to
intercourse was involuntary.)
Furthermore, the jury [herein] heard the victim testify that
despite the fact that she could not remember the assault, she did
not, and would not have consented to having sex with her own
brother-in-law. A.B.’s reaction the following morning: her shock
and surprise to find herself in a state of undress and Appellant
naked; that she spent the day crying; that she felt so badly that
she couldn’t eat, or do any household chores; is additional
circumstantial evidence of her lack of consent. In total, the
Commonwealth presented sufficient evidence for the jury to
conclude that the Commonwealth had satisfied [its] burden of
proving lack of consent beyond a reasonable doubt.
Trial Court Opinion, 7/25/19, at 6–7 (footnote omitted).
Appellant’s second issue alleges that the trial court’s sentence was
illegal, where the trial court failed to make a finding on the record concerning
the Recidivism Risk Reduction Incentive (“RRRI”) program.3 Appellant’s Brief
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3 The RRRI program permits an incentive to certain eligible offenders as
established in 61 Pa.C.S. §§ 4501, et seq. Under RRRI, “[t]he court shall
determine if the defendant is eligible for a recidivism risk reduction incentive
minimum sentence [and] ... [i]f the defendant is eligible, the court shall
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at 35 (citing Commonwealth v. Robinson, 7 A.3d 868, 870–871 (Pa. Super.
2010). Appellant asserts:
Instantly, at [Appellant’s] sentencing, the prosecutor
stated: “Your Honor, [Appellant] is not triple RI eligible. I just
wanted to put that on the record.” (ST at 20-21). Instead of
acknowledging and ruling on [Appellant’s] status, the trial court
immediately asked: “Isn’t he a SORNA, isn’t he subject to the
confines of SORNA?” (ST at 21). No other comments were made
about [Appellant’s] RRRI eligibility.
Appellant’s Brief at 35.
The Commonwealth cites to the trial court’s explanation and avers that
Appellant asks this Court to read the sentencing transcript in a vacuum.
Commonwealth’s Brief at 29–30. The Commonwealth maintains:
Under 61 Pa.C.S.A. § 4503, to be an “eligible offender” one must
not have been convicted of “any offense for which registration is
required under 42 Pa.C.S. Ch. 97 Subch. H (relating to registration
of sexual offenders).” It is clear that the prosecutor told the court
that [A]ppellant wasn’t eligible[,] and the trial court already knew
the reason for ineligibility-i.e., the requirement of registration,
and noted that on the record. It subsequently memorialized its
determination in the Order of Sentence.
Commonwealth’s Brief at 30.
Eligibility for RRRI has been regarded as implicating the legality of a
sentence. Commonwealth v. Tobin, 89 A.3d 663, 669 (Pa. Super. 2014);
Commonwealth v. Robinson, 7 A.3d 868, 871 (Pa. Super. 2010)). Because
RRRI eligibility “concerns a matter of statutory interpretation and is, thus, a
pure question of law, our standard of review is de novo and our scope of
____________________________________________
impose a recidivism risk reduction incentive minimum sentence in addition to
a minimum sentence and maximum sentence[.]” 42 Pa.C.S. § 9756(b.1).
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review is plenary.” Commonwealth v. Chester, 101 A.3d 56, 60 (Pa. 2014)
(citation omitted). We note that Appellant does not challenge his RRRI
eligibility; he merely claims that the trial court failed to make any finding of
RRRI eligibility. Appellant’s Brief at 36. We disagree.
The trial court addressed this contention, as follows:
Appellant challenges the legality of his sentence by complaining
that the [c]ourt erred by failing to state at the time of sentencing
if Appellant was RRRI eligible. RRRI, known as Recidivism Risk
Reduction Incentive, is found at 61 Pa.C.S.A. §§ 4501-4512.
Specifically, § 4505 requires the sentencing court to make a
determination on the record as to Appellant’s eligibility. Appellant
contends that the [c]ourt failed to make this finding at sentencing.
A review of the record reveals that this issue is meritless. At the
time of sentencing, the Commonwealth indicated to the [c]ourt
that Appellant was not RRRI eligible.11 The [c]ourt accepted the
Commonwealth’s assertion, as Appellant’s conviction subjects him
to lifetime registration, making him statutorily ineligible.12 The
[c]ourt’s sentencing Order reflects the same.13 “It is well settled
that, where there is a discrepancy between the sentence as
written and orally pronounced, the written sentence generally
controls.” Commonwealth v. Willis, 68 A.3d 997, 1010 (Pa. Super.
2013).
11 [N.T.(Sentencing), 2/5/19,] at 20.
12 Title 61 Pa.C.S.A. § 4503(1) and (4).
13 Order of Sentence, February 5, 2019.
Trial Court Opinion, 7/25/19, at 8–9.
It is significant, as noted by the trial court, that the sentencing order
clearly states that Appellant is “RRRI Ineligible: [Appellant] is not eligible for
RRRI by statute.” Order of Sentence, 2/5/19. Without this clarity, we may
have concluded differently. See, e.g., Commonwealth v. Robinson, 7 A.3d
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868, 871 (Pa. Super. 2010) (where trial court fails to make a determination
regarding a defendant’s eligibility for an RRRI minimum sentence, the
sentence is illegal). “It is axiomatic that if there is a conflict between the
sentence imposed in open court versus that contained in the trial court’s
written order, the sentence in the written sentencing order controls.”
Commonwealth v. Brooker, 103 A.3d 325, 329 (Pa. Super. 2014) (citing
Willis, 68 A.3d at 1010). Moreover, we recognize that Appellant is ineligible
for RRRI based on his conviction for sexual assault. See 61 Pa.C.S. § 4503(4)
(noting that a defendant is not eligible for RRRI if he is convicted of an offense
under 42 Pa.C.S. Ch. 97, relating to registration of sexual offenders). Thus,
we determine the issue lacks merit.
Appellant’s final issue assails the discretionary aspects of his sentence.
The trial court sentenced Appellant to four to eight years of imprisonment,
which is a sentence in the standard range of the Sentencing Guidelines. Order,
2/5/19; Guideline Sentence Form; Docket Entry 10. Appellant contends the
trial court abused its discretion by imposing an excessive, non-individualized
sentence. Appellant’s Brief at 41. Appellant has included in his brief the
required Pa.R.A.P. 2119(f) concise statement of matters relied upon for
allowance of appeal when raising an issue of the discretionary aspects of
sentence. Appellant’s Brief at 37–40.
It is well settled that a challenge to the discretionary aspects of a
sentence is a petition for permission to appeal, as the right to pursue such a
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claim is not absolute. Commonwealth v. Treadway, 104 A.3d 597, 599
(Pa. Super. 2014). “An appellant must satisfy a four-part test to invoke this
Court’s jurisdiction when challenging the discretionary aspects of a sentence,”
by (1) preserving the issue in the court below, (2) filing a timely notice of
appeal, (3) including a Rule 2119(f) statement, and (4) raising a substantial
question for our review. Commonwealth v. Tejada, 107 A.3d 788, 797 (Pa.
Super. 2015) (citation omitted); Commonwealth v. Austin, 66 A.3d 798,
808 (Pa. Super. 2013).
In the instant case, the issue was preserved in a post-sentence motion,
Appellant filed a timely appeal, and Appellant’s brief contains 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).
Accordingly, we must determine whether Appellant has raised a substantial
question that the sentence is not appropriate under 42 Pa.C.S. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).
The determination of whether there is a substantial question is made on
a case-by-case basis, and this Court will allow the appeal only when the
appellant advances a colorable argument that the sentencing judge’s actions
were either: (1) inconsistent with a specific provision of the Sentencing Code,
or (2) contrary to the fundamental norms which underlie the sentencing
process. Commonwealth v. Caldwell, 117 A.3d 763, 768 (Pa. Super.
2015). “Our inquiry must focus on the reasons for which the appeal is sought,
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in contrast to the facts underlying the appeal, which are necessary only to
decide the appeal on the merits.” Commonwealth v. Knox, 165 A.3d 925,
929 (Pa. Super. 2017) (quoting Commonwealth v. Tirado, 870 A.2d 362,
365 (Pa. Super. 2005)).
Appellant contends the trial court abused its discretion by failing to
follow the requirements of the Sentencing Code, 42 Pa.C.S. § 9721(b), 4 as it
allegedly ignored the general principle that the sentence imposed should call
for confinement that is consistent with the protection of the public, the gravity
of the offense as it relates to the impact on the life of the victim and on the
community, and the rehabilitative needs of the defendant. Appellant’s Brief
at 39. We conclude that in this instance, Appellant has raised a substantial
question. See Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super.
2006) (concluding that the appellant raised a substantial question where it
was alleged that the trial court failed to consider the factors set forth in 42
Pa.C.S. § 9721(b)). Therefore, because Appellant raises a substantial
question, we will address it on appeal.
It is undisputed that sentencing is a matter vested in the sound
discretion of the trial court, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. Fullin, 892 A.2d at 847. In this
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4 We note that the factors to be considered under 42 Pa.C.S. § 9721(b)
include the protection of the public, gravity of offense in relation to impact on
victim and community, and rehabilitative needs of the defendant.
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context, an abuse of discretion is not shown merely by an error in judgment.
Id. 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. Id.
Indeed, the sentencing judge has broad discretion in determining the
proper penalty, and this Court accords the sentencing court great deference,
as it is the sentencing court that is in the best position to view the defendant’s
character, displays of remorse, defiance, or indifference, and the overall effect
and nature of the crime. Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.
2007) (quotations and citations omitted).
Appellant argues that his standard-range sentence is excessive, and the
trial court failed to address mitigating circumstances present in his case.
Appellant’s Brief at 41. He suggests that the trial court “relied instead on the
victim’s impact statement and the circumstances behind [Appellant’s]
conviction in addition to a faulty presentence report.” Id. Appellant avers
that the trial court misunderstood the nature of his character testimony.
Appellant’s Brief at 43 and n.11. He posits that the trial court failed to consider
Appellant’s “lack of a prior record, his employment circumstances, and his own
victimization,” asserting that his family fled Mexico when their house was
burned down. Id. at 44 and n.12. Thus, Appellant contends he is entitled to
a new sentencing hearing.
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Regarding Appellant’s suggestion that the presentence investigation
(“PSI”) report, upon which the trial court relied, was “faulty,” Appellant
maintains that a translator was not present during the interview for the report.
Appellant’s Brief at 46. This claim is rejected as waived. See Pa.R.A.P. 302(a)
(Issues not raised in the lower court are waived and cannot be raised for the
first time on appeal). Appellant did not object to the PSI report based on the
absence of a translator. Rather, counsel merely stated, “As noted in the
presentence report, the pre-sentence investigator met with [Appellant]
without an interpreter, and that could be the reason for a few of these
corrections.” N.T. (Sentencing), 2/5/19, at 3. This issue is waived.
Commonwealth v. Spell, 28 A.3d 1274, 1280 (Pa. 2011) (failure to raise a
timely objection waives issue).
Appellant also contends that because the trial court failed to consider
his character and mitigating circumstances outside of the facts of the case,
the trial court could not have fashioned an individualized sentence.
Appellant’s Brief at 47. The Commonwealth responds that that the trial court
did consider all factors. Commonwealth’s Brief at 33. It maintains that
Appellant’s argument is mere complaint regarding how the trial court weighed
the factors.
The trial court stated:
The record reflects that all the proper considerations were
made pursuant to 42 P[a].C.S.A. § 9721(b). Trial counsel aptly
spoke on behalf of Appellant regarding mitigation, citing his lack
of a criminal history, work history, his children, and his mother’s
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failing health. It is important to note that the author of the
character letter and testifying character witness were mostly, if
not exclusively, acquainted with Appellant’s mother, not
Appellant. The [c]ourt clearly balanced all factors before it when
it reasoned that the imposed standard range sentence reflected
not only the gravity of the crime and violation of family trust, but
also the mitigating fact, which was the [c]ourt’s belief that
Appellant’s conduct was rooted in his highly intoxicated[] state as
opposed to a desire to harm. Therefore, the [c]ourt’s standard
range sentence was appropriate and not manifestly excessive.
Trial Court Opinion, 7/25/19, at 8 (footnotes omitted).
“We have repeatedly held that where a sentencing court has the benefit
of a PSI, the court is presumed to have weighed all relevant information
regarding the defendant’s character against any mitigating factors.”
Commonwealth v. Mulkin, 228 A.3d 913 (Pa. Super. 2020) (citing Moury,
992 A.2d at 171). Furthermore, this argument is belied by the record. The
trial court stated at sentencing:
Very well. All right, I have considered the sentencing
guidelines in this case. The bottom of the mitigated range is 24
months. The standard range runs from 36 up to 54 months. And
the top of the aggravated range is 60 months. I have considered
and read the three letters submitted on behalf of [Appellant]. I
have considered the presentence report which contains a
statement by the victim of the sexual assault, wherein she details
the harm that this has caused to her and her family, and where
she requests the [c]ourt to impose the maximum possible
sentence. I have also considered the testimony relative to
[Appellant’s] mother’s failing health . . . .
N.T. (Sentencing), 2/5/19, at 16–17.
Therefore, we conclude that all mitigating factors were considered. The
trial court did not abuse its discretion in imposing Appellant’s sentence.
Judgment of sentence affirmed.
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J-A14003-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/2020
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