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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
ELIEZER ALMANZAR, : No. 1049 MDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, December 29, 2014,
in the Court of Common Pleas of York County
Criminal Division at No. CP-67-CR-0000294-2014
BEFORE: FORD ELLIOTT, P.J.E., JENKINS AND PLATT,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 20, 2016
Eliezer Almanzar appeals from the judgment of sentence entered on
December 29, 2014, after a jury convicted him of one count of involuntary
deviate sexual intercourse with a child1 (“IDSI”), one count of aggravated
indecent assault of a child,2 and one count of corruption of minors.3 The trial
court sentenced appellant to a term of incarceration of 6 to 12 years on the
IDSI count, which merged with the aggravated indecent assault count, and
* Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. § 3123(b).
2
18 Pa.C.S.A. § 3125(b).
3
18 Pa.C.S.A. § 6301(a)(1)(ii).
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to a concurrent 5-year term of incarceration on the corruption of minors
count. We affirm.
The record reflects that appellant’s convictions stem from an incident
involving the 4-year-old daughter of appellant’s then-girlfriend. The incident
occurred on September 7, 2013. On that day, appellant had made
arrangements with the victim’s mother to pick the victim up at her
babysitter’s home, take her out to eat, and take her to a movie. (Notes of
testimony, 9/9-11/14 at 159.) After appellant picked the victim up, he took
her to his home, claiming that he needed to get money and his phone
charger. (Id. at 159.) While at his residence, appellant took the victim to
his bedroom, removed her pants and underwear, and licked her vagina.
(Id. at 84-93.) Afterwards, appellant instructed the victim that she should
not tell her mother. (Id. at 86.) He then took the victim to McDonald’s for
a Happy Meal and then to an ice cream shop. (Id. at 85-86.) The next day,
the victim told her mother that appellant had licked her private part. (Id. at
86, 100.) The victim’s mother immediately called police and took the victim
to a hospital emergency room. (Id. at 101.)
The trial court set forth the following procedural history:
On March 21, 2014, [appellant] filed an
Omnibus Pretrial Motion. The Commonwealth lodged
a response on June 24, 2014. The Commonwealth
then filed Commonwealth’s Motion to Allow
Testimony of Out-of-Court Statements Made by Child
Victims Pursuant to 42 Pa.C.S.A. § 5985.1, on
June 27, [2014]. Following a hearing on August 22,
2014, we denied the suppression of Appellant’s
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confession, which had been challenged in Appellant’s
Omnibus. And on August 29, 2014, at the
conclusion of a hearing, this Court granted the
Commonwealth’s tender years exception.
On September 11, 2014, a jury of the
Appellant’s peers found him guilty of [IDSI],
Aggravated Indecent Assault of a Child, and
Corruption of Minors. We raised the issue of
merging counts and then set it aside to be dealt with
at the time of sentencing. On September 22, 2014,
the Appellant filed a Motion for Arrest of
Judgment/Motion for Acquittal.[Footnote 2]
Thereafter, the Appellant filed a Motion for
Extraordinary [R]elief, which was docketed on
December 19, 2014, that challenged [the]
Commonwealth for having invoked a mandatory
minimum. [The] Commonwealth filed a response on
December 26, 2014; however, at sentencing, on
December 29, 2014, the Commonwealth dropped the
mandatory minimum because new case law
convinced them that it was unconstitutional. We
then proceeded to sentence the Appellant to six to
twelve years for the [IDSI] and a concurrent term of
five years for Corruption of Minors. We merged the
Indecent Assault charge with the [IDSI] charge.
[Footnote 2] This motion stated that
counsel was gathering more information
for this motion. We do not see in the
record that we disposed of the motion;
however, nor do we see that defense
counsel submitted any further
information upon which the motion was
to be based. Rather, we believe the
motion was dealt with through timely
post-sentence motions.
On January 8, 2015, the Appellant filed post-
sentence motions. As a result of the motions being
undecided within one hundred and twenty days of
filing, they were denied as a matter of law in
accordance with Rule 720 of the Rules of Criminal
Procedure. Counsel for the Appellant then filed an
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appeal with the Superior Court [which] ordered him
to file the Appellant’s Praecipe for Entry of Order
Denying Post-Sentence Motions by Operation of Law,
which counsel did on July 21, 2015. We signed a
related order on July 28, 2015.
On June 17, 2015, this Court received a Notice
of Appeal. On July 1, 2015, pursuant to Rule
1925(b) of the Pennsylvania Rules of Appellate
Procedure, we ordered the Appellant to file a
statement of matters complained of. That statement
was docketed on July 21, 2015.
Trial court opinion, 10/28/154 at 1-3 (footnote 1 omitted).
Appellant raises the following issues for our review:
I. Whether the [T]rial Court erred by not granting
the Appellant’s [Judgment] of Acquittal as the
Commonwealth failed to prove in their case
that there was penetration which was a
necessary element to support the charge of []
IDSI?
II. Whether the Trial Court erred by not granting
the Appellant’s Suppression Motion with
respect to statements made to the police at
the time of his interview as said statements
were provided under a coercive environment
and the Court’s failure to do so prejudiced the
Appellant at the time of trial?
Appellant’s brief at 6.
The standard we apply in reviewing the sufficiency of
the evidence is whether viewing all the evidence
admitted at trial in the light most favorable to the
verdict winner, there is sufficient evidence to enable
the fact-finder to find every element of the crime
beyond a reasonable doubt. In applying the above
test, we may not weigh the evidence and substitute
4
We note that the trial court’s opinion is dated October 27, 2015, but was
filed on October 28, 2015.
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our judgment for the fact-finder. In addition, we
note that the 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. The
Commonwealth may sustain its burden of proof of
proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the
entire record must be evaluated and all the 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. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004)
(citation omitted).
The Crimes Code defines IDSI as follows: “A person commits
involuntary deviate sexual intercourse with a child, a felony of the first
degree, when the person engages in deviate sexual intercourse with a
complainant who is less than 13 years of age.” 18 Pa.C.S.A. § 3123(b). The
Crimes Code defines deviate sexual intercourse, in relevant part, as
“[s]exual intercourse per os or anus between human beings.” 18 Pa.C.S.A.
§ 3101. The Crimes Code defines sexual intercourse, in relevant part as,
“[i]n addition to its ordinary meaning, [it] includes intercourse per os or per
anus, with some penetration however slight.” Id. This court has held that
“any involuntary contact by the mouth, including the tongue as well as the
lips, [with the sexual organ of another person] . . . meet[s] the test of
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involuntary deviate sexual intercourse.” Commonwealth v. L.N., 787 A.2d
1064, 1071 (Pa.Super. 2001), appeal denied, 800 A.2d 931 (Pa. 2002).
See also In the Interest of J.R., 648 A.2d 28 (Pa.Super. 1994), appeal
denied, 655 A.2d 515 (Pa. 1995) (stating that “[d]eviate sexual intercourse
is considered to have occurred if one’s mouth or tongue penetrates the
vaginal area of another”); see also Commonwealth v. McIlvaine, 560
A.2d 155 (Pa.Super. 1989), reversed on other grounds, 603 A.2d 1021
(Pa. 1992) (holding that where victim was forced to kiss defendant’s penis,
testimony was sufficiently descriptive to warrant the inference by the jury
that defendant penetrated, “however, slight,” the victim’s mouth).
Here, appellant complains that there was insufficient evidence to
convict him of IDSI because the victim did not testify at trial that appellant
penetrated her. Appellant goes on to complain that the trial court somehow
erred in admitting the victim’s videotaped Children’s Advocacy Center
(“CAC”) interview, despite appellant stipulating to its admission. Appellant
argues that but for the admission of that videotape, which, again, appellant
stipulated to, there would have been no evidence of penetration sufficient to
convict appellant of IDSI because the victim did not testify at trial that
appellant penetrated her. Appellant further complains that because he was
not present at the CAC interview, he was unable to cross-examine the victim
with respect to penetration. Appellant is mistaken.
The record reflects that the victim testified as follows:
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Q. Okay. What did he do after he pulled down
your pants?
A. Licked me.
Q. He licked you?
A. (Nodded head affirmatively.)
Q. Okay. Where did he lick you?
A. Down where he pulled down my pants.
Q. And what do you call the part that he licked?
A. My private.
Notes of testimony, 9/9-11/14 at 83-84. The Commonwealth then showed
the victim a drawing of a naked female and requested her to circle the part
of the female’s body that appellant licked. (Id. at 84-85.) The victim circled
the female genitalia. (Id. at 85; see also Commonwealth Exhibit 1.)
Clearly, the record reflects that the Commonwealth produced evidence
that there was oral contact with appellant’s mouth and the victim’s genitalia.
That evidence was sufficient to establish penetration however slight in order
to convict appellant of IDSI.
To the extent that the victim’s trial testimony contradicted what she
said during the CAC interview, such contradictions were to be resolved by
the fact-finder, which, in this case, was a jury of appellant’s peers. It is not
our role to usurp the fact-finder’s function, and we will not do so. Finally,
because appellant cross-examined the victim at trial, the record belies his
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complaint that he had no opportunity to cross-examine the victim with
respect to penetration. Therefore, appellant’s first claim lacks merit.
Appellant’s second and final complaint is that the trial court erred in
denying his motion to suppress appellant’s confession.
Our standard of review for challenges to the denial of a suppression
motion is as follows:
[We are] limited to determining whether the
suppression court’s factual findings are supported by
the record and whether the legal conclusions drawn
from those facts are correct. Because the
Commonwealth prevailed before the suppression
court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the
defense as remains uncontradicted when read in the
context of the record as a whole. Where the
suppression court’s factual findings are supported by
the record, we are bound by these findings and may
reverse only if the court’s legal conclusions are
erroneous. Where . . . the appeal of the
determination of the suppression court turns on
allegations of legal error, the suppression court’s
legal conclusions are not binding on an appellate
court, whose duty it is to determine if the
suppression court properly applied the law to the
facts. Thus, the conclusions of law of the courts
below are subject to our plenary review.
Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa.Super. 2012),
appeal denied, 65 A.3d 413 (Pa. 2013) (citations omitted).
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Here, appellant specifically complains that because he was subject to a
custodial interrogation and was not given his Miranda5 warnings, the trial
court erred in denying his suppression motion.
“Police detentions in Pennsylvania become custodial
when, under the totality of the circumstances, the
conditions and/or duration of the detention become
so coercive as to constitute the functional equivalent
of arrest.” Commonwealth v. Ellis, 549 A.2d
1323, 1332 (Pa.Super. 1988) (citing California v.
Beheler, 463 U.S. 1121, (1983)). “Interrogation is
police conduct calculated to, expected to or likely to
evoke admission.” Commonwealth v. Johnson,
541 A.2d 332, 336 (Pa.Super. 1988) (citation and
quotations omitted). The overlying test to determine
whether a person is being subjected to a custodial
interrogation necessitating Miranda warnings is
whether he is physically deprived of his freedom in
any significant way or is placed in a situation in
which he reasonably believes that his freedom of
action or movement is restricted by such
interrogation. See Commonwealth v. Chacko,
459 A.2d 311, 314 (Pa. 1983). “The standard for
determining whether police have initiated a custodial
interrogation or an arrest is an objective one, with
due consideration given to the reasonable impression
conveyed to the person interrogated rather than the
strictly subjective view of the troopers or the person
being seized.” Commonwealth v. Edmiston, 634
A.2d 1078, 1085-86 (Pa. 1993). The factors that the
court considers to determine whether there has been
a custodial interrogation include: the basis for the
detention; its length; its location; whether the
suspect was transported against his or her will, how
far and why; whether restraints were used; whether
the law enforcement officer showed, threatened or
used force; and the investigative methods employed
to confirm or dispel suspicions. See
Commonwealth v. Peters, 642 A.2d 1126, 1130
(Pa.Super. 1994) (en banc).
5
Miranda v. Arizona, 384 U.S. 436 (1966).
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Police detentions become custodial when, under the
totality of the circumstances, the conditions and/or
duration of the detention become so coercive as to
become the functional equivalent of an arrest. See
Ellis, 549 A.2d at 1332. “Arrest is an act that
indicates an intention to take a person into custody
or that subjects the person to the will and control of
the person making the arrest.” Commonwealth v.
Gwynn, 723 A.2d 143, 148 (Pa. 1998).
Commonwealth v. Turner, 772 A.2d 970, 974 (Pa.Super. 2001).
We must first determine whether, under the totality of the
circumstances, the detention became so coercive as to constitute the
functional equivalent of arrest and, consequently, necessitate the provision
of Miranda warnings.
The record reflects that Detective Kyle Hower of the York County Police
Department contacted appellant and asked him if he would be willing to
speak with the detective. (Notes of testimony, 6/26/14 at 18.) The two
then made arrangements for the interview. (Id.) Appellant arrived at the
police department voluntarily. (Id.) Because appellant made his own
transportation arrangements, nothing in the record indicates that appellant
was transported to the police department against his will. (Id.)
In addition to Detective Hower, Amy Abel, of Children & Youth, was
present. (Id. at 7, 18.) The interview lasted approximately one hour. (Id.
at 12.) Nothing in the record indicates that restraints were used.
Detective Hower told appellant that appellant was free to leave at any time
and that he was not under arrest. (Id. at 11-12.) The door to the interview
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room remained unlocked during the interview. (Id. at 11.) Appellant never
asked to leave the interview. (Id. at 9, 16). Appellant never tried to leave
the interview. (Id. at 10, 16.) Detective Hower provided appellant with
water. (Id. at 19.) Nothing in the record indicates that Detective Hower
showed, threatened, or used force during the interview. Detective Hower
testified that he used the investigative method of moving his chair closer to
appellant in order to establish rapport. (Id. at 18-19.) Appellant did not
shy away from the detective when he moved closer to appellant. (Id. at
20.) At the conclusion of the interview, appellant left the department. (Id.
at 10.)
Under the totality of the circumstances, the detention was not
custodial because nothing in the record indicates that appellant was
physically deprived of his freedom in any significant way or placed in a
situation where he would reasonably believe his freedom of action or
movement was restricted. Consequently, appellant was not entitled to
Miranda warnings.
We must next determine whether appellant’s confession was
voluntary.
Voluntariness is determined from the totality of the
circumstances surrounding the confession. The
question of voluntariness is not whether the
defendant would have confessed without
interrogation, but whether the interrogation was so
manipulative or coercive that it deprived the
defendant of his ability to make a free and
unconstrained decision to confess. The
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Commonwealth has the burden of proving by a
preponderance of the evidence that the defendant
confessed voluntarily.
Commonwealth v. Ogrod, 839 A.2d 294, 320 (Pa. 2003) (citation
omitted).
Here, the Commonwealth met its burden. Under the totality of the
circumstances as set forth above, nothing in the record suggests that the
confession was the product of manipulation or coercion. Rather, appellant
arrived at the interview freely and voluntarily, and appellant confessed freely
and voluntarily. Therefore, this claim lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2016
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