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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ISRAEL PEREZ
Appellant No. 2155 MDA 2015
Appeal from the Judgment of Sentence November 5, 2015
in the Court of Common Pleas of Berks County Criminal Division
at No(s): CP-06-CR-0002767-2013
BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JULY 21, 2016
Appellant, Israel Perez, appeals from the judgment of sentence
entered in the Berks County Court of Common Pleas. Appellant challenges
the weight and sufficiency of the evidence, and the discretionary aspects of
his sentence. We affirm.
The trial court summarized the facts as follows:
In December of 2012, [Victim] lived in a row house at
539 Maple Street in the City of Reading. [N.T., 4/28/15,]
at 22. [Victim] had lived in the house since August of
2012, and by December she was living by herself.[1] Id. at
22-23. Appellant was [Victim’s] landlord, and he lived
next door . . . with his wife and children. Id. at 23, 26.
[Victim] suffers from physical and mental disabilities.
[Victim] had no key to her residence, and the only
*
Former Justice specially assigned to the Superior Court.
1
When Victim first moved into the house, she moved in with Bobby Strauss.
Id. at 22. Bobby’s mother and her boyfriend were living there prior to
August 2012. Id. at 23.
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available phones were next door at Appellant’s house. Id.
at 25 [ ]. Appellant’s wife, Mag, helped [Victim] with
errands such as doctor’s appointments and shopping. Id.
[at 26.] Mag also managed [Victim’s] finances. Id. at 26-
27. [Victim] had less involvement with Appellant because
of their language barrier─he spoke Spanish, and [Victim]
spoke English. Id. at 27-28.
At around 8:00 P.M. on December 23, 2012, [Victim]
was sitting on her bed writing recipes. Id. at 28. [Victim]
slept on the first floor of her house in a hospital bed. Id.
at [25-]26. Suddenly, [Victim] got the sense that
someone was in the room. Id. at 30. She looked up and
saw Appellant standing at the foot of her bed with a shirt
and no pants. Id. at 31. Appellant went to turn off the
light, and [Victim] told him she would turn it off herself
when she was done writing her recipes and ready for bed.
Id. Appellant turned the light off anyway. Id. at 4[0].
Appellant came over to the bed, put [Victim’s] legs up,
and got on top of her. Id. at 3[1]. He inserted his penis
in [Victim’s] vagina after pulling her shorts down. Id. [at
32.] Appellant said nothing, and [Victim] was too scared
and stunned to say much of anything. Id. Appellant
eventually finished and left, while [Victim] laid in her bed
scared and confused. Id. [Victim] eventually went to
sleep. Id. at 33.
Two days later, [Victim] was at a friend’s house for
Christmas morning. Id. [ ] A friend named Bobby wanted
to give [Victim] a hug and kiss, but she told him she did
not want to be touched. Id. [at 34. Victim] returned to
the house later that night, and she eventually told another
friend [ ] named Kathy [Capece], what had happened. Id.
at 34-35.
Kathy called the police, who came to speak with
[Victim]. Id. at 35. [Victim] gave a statement and was
taken to [Reading Hospital and Medical Center]. Id.
Jessica Drexler, a forensic nurse, conducted a rape kit
examination with [Victim], who was tearful and quiet. Id.
at 49. [Victim] never returned to 539 Maple Street, not
even to gather her possessions. Id. at 36, 60.
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On March 11, 2013, Criminal Investigator Justin
Uczynski spoke with Appellant about the investigation and
drove him to City Hall. Id. at 61. Detective John
Carrasquillo, who speaks Spanish, interviewed Appellant at
City Hall. Id. at 64. Appellant stated that he never had a
sexual relationship of any kind with [Victim]. Id. at 66.
Appellant provided a DNA sample at that time. Id. at 67.
Timothy Gavel is a forensic scientist employed by the
Pennsylvania State Police DNA Laboratory. Id. at 72.
Gavel’s investigation revealed that Appellant’s DNA had
been recovered from [Victim’s] vagina and on her clothing.
Id. at 79, 81.
Trial Ct. Op., 2/12/16, at 2-3.
Victim testified at trial that she graduated from high school at the age
of 21. N.T. at 19. She took special classes. Id. She stopped working in
2001 because of an accident. Id. at 20-21. She testified as follows:
[The Commonwealth]: Did you ever go back to 539 Maple
Street?
A: No.
Q: Not even once.
A: No.
Q: Where did you go?
A: I went to Bobby’s and Kathy Capece’s.
Id. at 35-36.
Jessica Drexler, a Sexual Assault Nurse Examiner, testified at trial. Id.
at 46-47. The Commonwealth questioned Ms. Drexler about Victim’s
demeanor when she was relating the facts of the incident.
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[The Commonwealth]: And what was [Victim’s] demeanor
like when she was telling you this?
A: She was very quiet, tearful.
Q: How old was she that day?
A: Forty-one.
Q: Did she strike you as a typical woman of that age?
A: No, she did not.
Q: Why not?
A: She required a lot of assistance getting around the
treatment room. It was difficult for her to get on and off
of the bed, to put her legs in the stirrups. To have the
exam completed, she needed some assistance. She even
needed some assistance standing and getting her clothing
off.
Q: Physically, you mean?
A: Yes.
Q: What was the issue?
A: She just couldn’t maneuver. She had some balance
issues. She didn’t walk very well.
Id. at 49-50.
Following a jury trial, Appellant was convicted of sexual assault 2 and
indecent assault.3 He was sentenced to five to ten years’ imprisonment,
with 891 days’ credit for time served. Appellant filed post sentence motions,
2
18 Pa.C.S. § 3124.1.
3
18 Pa.C.S. § 3126(a)(1).
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which were denied. This timely appeal followed. Appellant filed a court
ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal and
the trial court filed a responsive opinion.
Appellant raises the following issues for our review:
A. Whether the evidence was insufficient to support the
guilty verdict for Sexual Assault [ ] where the
Commonwealth failed to prove beyond a reasonable doubt
that Appellant engaged in sexual intercourse with [Victim]
without [Victim’s] consent, where [Victim] testified that
she did not communicate a lack of consent, either verbally
or though physical cues, to Appellant.
B. Whether the evidence was insufficient to support the
guilty verdict for Indecent Assault [ ] where the
Commonwealth failed to prove beyond a reasonable doubt
that [ ] Appellant had indecent contact with [Victim], or
caused [Victim] to have indecent contact with Appellant,
without [Victim’s] consent, where [Victim] testified that
she did not communicate a lack of consent, either verbally
or through physical cues, to Appellant?
C. Whether the verdicts of guilt[y] for Sexual Assault [ ]
and Indecent Assault are against the weight of the
evidence where the Commonwealth only presented
evidence as to [Victim’s] lack of consent through Jessica
Drexler and said evidence is wholly inconsistent with
[Victim’s] testimony that she never communicated a lack
of consent, either verbally or through physical cues, to
Appellant.
D. Whether the trial court abused its discretion in imposing
a sentence of 5 years to 10 years of incarceration where
the sentence was manifestly excessive based on the facts
elicited at trial and Appellant’s lack of any prior record,
clearly unreasonable and contrary to the fundamental
norms underlying the Sentencing Code and where the
court imposed a sentence in the aggravated range of the
sentencing guidelines without stating sufficient reasons on
the record for the upward deviation.
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Appellant’s Brief at 5.
Appellant addresses his first two issues together. Appellant’s Brief at
11. He argues
[t]he evidence was insufficient to support the guilty
verdicts for Sexual Assault and Indecent Assault where the
Commonwealth failed to prove beyond a reasonable doubt
that Appellant engaged in sexual intercourse or had
indecent contact with [Victim] without her consent.
Specifically, [Victim] testified that she did not
communicate a lack of consent, either verbally or through
physical cues, to Appellant.
Id.
Our review is governed by the following principles: “A claim
challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
[T]he critical inquiry on review of the sufficiency of the
evidence to support a criminal conviction . . . does not
require a court to ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable
doubt. Instead, it must determine simply whether the
evidence believed by the fact-finder was sufficient to
support the verdict. . . .
* * *
When reviewing the sufficiency of the evidence, an
appellate court must determine whether the evidence, and
all reasonable inferences deducible from that, viewed in
the light most favorable to the Commonwealth as verdict
winner, are sufficient to establish all of the elements of the
offense beyond a reasonable doubt. . . .
Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-37 (Pa. 2007)
(citations and quotation marks omitted).
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Sexual assault is defined as follows:
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. Regarding indecent assault, the statute provides that
(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:
(1) the person does so without the complainant’s
consent[.]
18 Pa.C.S. § 3126(a)(1).
Furthermore, the legislature also specified that “[t]he alleged victim
need not resist the actor in prosecutions under this chapter[.]” 18 Pa.C.S. §
3107; see also Commonwealth v. Smith, 863 A.2d 1162, 1176 (Pa.
Super. 2004) (citation omitted) (stating the crime of sexual assault is
intended to fill the loophole left by the rape and involuntary deviate sexual
intercourse statutes by criminalizing non-consensual sex where the
perpetrator employs little if no force). “The testimony of a complainant need
not be corroborated in prosecutions under this chapter.” 18 Pa.C.S. § 3106.
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Appellant’s argument that there was insufficient evidence because
Victim did not communicate, either verbally or non-verbally, her lack of
consent is without merit. See 18 Pa.C.S. §§ 3106, 3107; Smith, 863 A.2d
at 1176. In the case at bar, reviewing the evidence in the light most
favorable to the Commonwealth as verdict winner we find there is sufficient
evidence to allow the jury to find every element of the crimes of sexual
assault and indecent assault beyond a reasonable doubt. See Ratsamy,
934 A.2d at 1235-36, 1237.
Next, Appellant contends
[t]he guilty verdicts were against the weight of the
evidence where the Commonwealth only presented
evidence as to [Victim’s] lack of consent through Jessica
Drexler and said evidence is wholly inconsistent with
[Victim’s] testimony that she never communicated a lack
of consent to Appellant.
Appellant’s Brief at 13. He raises virtually the same arguments as he did for
the sufficiency of the evidence.
Our Supreme Court has held that
[a] motion for a new trial alleging that the verdict was
against the weight of the evidence is addressed to the
discretion of the trial court. An appellate court, therefore,
reviews the exercise of discretion, not the underlying
question whether the verdict is against the weight of the
evidence. The factfinder is free to believe all, part, or
none of the evidence and to determine the credibility of
the witnesses. The trial court will award a new trial only
when the jury’s verdict is so contrary to the evidence as to
shock one’s sense of justice. In determining whether this
standard has been met, appellate review is limited to
whether the trial judge’s discretion was properly exercised,
and relief will only be granted where the facts and
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inferences of record disclose a palpable abuse of
discretion. Thus, the trial court’s denial of a motion for a
new trial based on a weight of the evidence claim is the
least assailable of its rulings.
Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011) (citations
omitted).
Instantly, the trial court found no merit to Appellant’s claim that the
verdict was against the weight of the evidence. Trial Ct. Op. at 6-7.
Appellant asks this Court to reweigh the evidence. This we cannot do. See
Ramtahal, 33 A.3d at 609. Instantly, the jury’s verdict was “not so
contrary to the evidence as to shock one’s sense of justice.” See id. We
discern no abuse of discretion by the trial court. See id.
Lastly, Appellant challenges the discretionary aspects of his sentence.
He claims
[t]he sentencing court abused its discretion in imposing a
5 to 10 year sentence where the sentence was manifestly
excessive based on the facts elicited at trial and
Appellant’s lack of a prior record, where the sentence was
clearly unreasonable and contrary to the fundamental
norms underlying the Sentencing Code, and the court
imposed a sentence in the aggravated range without
stating sufficient reasons on the record for the upward
deviation.
Appellant’s Brief at 15. Appellant avers that “[a]lthough a court is not
required to state every factor that must be considered under [42 Pa.C.S. §]
9721(b), the record, as a whole, must reflect the court’s due consideration
of those statutory factors.” Id.
This Court has stated,
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discretionary aspects of [an appellant’s] sentence [ ] are
not appealable as of right. Rather, an appellant
challenging the sentencing court’s discretion must invoke
this Court’s jurisdiction by satisfying a four-part test.
We conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal,
see Pa.R.A.P. 902 and 903; (2) whether the issue was
properly preserved at sentencing or in a motion to
reconsider and modify sentence, see Pa.R.Crim.P. 720;
(3) whether appellant’s brief has a fatal defect,
Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is
not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (some
citations omitted).
Instantly, Appellant timely filed his appeal, preserved the issue of an
excessive sentence in his post-sentence motion, and included a statement in
his brief which conforms with Pa.R.A.P. 2119(f). See Appellant’s Brief at 8-
9. Accordingly, we ascertain whether Appellant has raised a substantial
question. See Leatherby, 116 A.3d at 83.
“A defendant presents a substantial question when he sets forth a
plausible argument that the sentence violates a provision of the sentencing
code or is contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013)
(quotation marks and citation omitted). “[A]rguments that the sentencing
court failed to consider the factors proffered in 42 Pa.C.S. § 9721 . . .
present a substantial question.” Id. at 1272 n.8.
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Appellant sufficiently alleges his sentence was excessive and the court
failed to give due consideration to the statutory factors in Section 9721. We
therefore find that Appellant has raised a substantial question. See id. at
1268, 1272 n.8.
Our standard of review is as follows:
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. An abuse
of discretion is more than just an error in judgment and,
on appeal, the trial court will not be found to have abused
its discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill-will.
Commonwealth v. Bricker, 41 A.3d 872, 875 (Pa. Super. 2012) (citation
omitted).
“Our Supreme Court has determined that where the trial court is
informed by a pre-sentence report, 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. Downing, 990 A.2d 788, 794 (Pa. Super. 2010)
(quotation marks and citation omitted).
At sentencing, the trial court stated:
I’ve reviewed the PSI in this case. I’ve taken into account
also the testimony that I heard during the trial of the case.
I’ve taken into account the provisions of the sentencing
guidelines. I’ve taken into account both the conclusion of
Dr. Valliere that [Appellant] is a sexually violent predator
as well as the contents of the report itself. I’ve taken into
account the recommendations of both counsel. And I’ve
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taken into account also those factors that defense counsel
has cited relating to [Appellant’s] possible deportation to
Mexico.
N.T. Sentencing Hr’g, 11/5/15, at 9. Appellant, at sentencing, stipulated to
the report of Dr. Valliere. Id. at 3. The Court explained to Appellant “that
by stipulating to the report, [he had] been found to be a sexually violent
predator by the Sexual Offenders Assessment Board.” Id. at 4. The trial
court considered the PSI on the record. See id. at 9. Thus, we do not
disturb the trial court’s discretion. See Bricker, 41 A.3d at 875; Downing,
990 A.2d at 794. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2016
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Com. v. Perez, I.
Combined Opinion