J-S10004-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EUSEBIO BORGOS-LEON,
Appellant No. 1483 EDA 2015
Appeal from the Judgment of Sentence Entered October 5, 2011
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009073-2009
BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 01, 2017
Appellant, Eusebio Borgos-Leon, appeals nunc pro tunc from the
judgment of sentence of 20 to 40 years’ incarceration, imposed after a jury
convicted him of involuntary deviate sexual intercourse with a child, 18
Pa.C.S. § 3123(b); unlawful contact with a minor, 18 Pa.C.S. § 6318(a)(1);
corruption of minors, 18 Pa.C.S. § 6301(a)(1); rape by forcible compulsion,
18 Pa.C.S. § 3121(a)(1); rape of a child, 18 Pa.C.S. § 3121(c); and
possessing an instrument of crime, 18 Pa.C.S. § 907(a). On appeal,
Appellant seeks to challenge the sufficiency of the evidence to sustain his
convictions, as well as his designation as a sexually violent predator.
Additionally, his counsel, Dennis Turner, Esq., seeks to withdraw his
representation of Appellant pursuant to Anders v. California, 386 U.S. 738
(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After
J-S10004-17
careful review, we affirm Appellant’s judgment of sentence and grant
counsel’s petition to withdraw.
For purposes of our disposition, we need not reiterate the factual and
procedural history of Appellant’s case, as it was thoroughly set forth by the
trial court in its Pa.R.A.P. 1925(a) opinion. See Trial Court Opinion,
4/12/16, at 1-6. Rather, we will proceed directly to assessing Attorney
Turner’s petition to withdraw and Anders brief, in which he asserts that the
following two issues - preserved by Appellant in a timely-filed Pa.R.A.P.
1925(b) statement - are frivolous:
I. [Whether the evidence was sufficient] to support the verdict of
guilty as to the charges of involuntary deviate sexual intercourse
with a child; unlawful contact with a minor…; corruption of
minors; rape [by] forcible compulsion; rape of a child[;] and
possession of [an] instrument of crime…[?]
II. [Whether] the court erred in finding [Appellant] to be a
sexually violent predator … based on the assessment of Doctor
Barbara Ziv at [a] Megan’s Law hearing as to whether
[Appellant] meets the statutory criteria to be deemed a sexually
violent predator, as said finding increased the prescribed range
of penalties to which [Appellant] was exposed and thus violated
his 6th [A]mendment right to have a jury find those facts beyond
a reasonable doubt[?]
Anders Brief at 5 (unnecessary capitalization omitted).
Because Attorney Turner has filed an Anders brief and petition to
withdraw, we
must first pass upon counsel's petition to withdraw before
reviewing the merits of the underlying issues presented by [the
appellant]. Commonwealth v. Goodwin, 928 A.2d 287, 290
(Pa. Super. 2007) (en banc).
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Prior to withdrawing as counsel on a direct appeal under
Anders, counsel must file a brief that meets the requirements
established by our Supreme Court in Santiago. The brief must:
(1) provide a summary of the procedural history and facts,
with citations to the record;
(2) refer to anything in the record that counsel believes
arguably supports the appeal;
(3) set forth counsel's conclusion that the appeal is
frivolous; and
(4) state counsel’s reasons for concluding that the appeal
is frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361. Counsel also must provide a copy of
the Anders brief to his client. Attending the brief must be a
letter that advises the client of his right to: “(1) retain new
counsel to pursue the appeal; (2) proceed pro se on appeal; or
(3) raise any points that the appellant deems worthy of the
court[’]s attention in addition to the points raised by counsel in
the Anders brief.” Commonwealth v. Nischan, 928 A.2d 349,
353 (Pa. Super. 2007), appeal denied, 594 Pa. 704, 936 A.2d 40
(2007).
Commonwealth v. Orellana, 86 A.3d 877, 879-880 (Pa. Super. 2014).
After determining that counsel has satisfied these technical requirements of
Anders and Santiago, this Court must then “conduct an independent
review of the record to discern if there are any additional, non-frivolous
issues overlooked by counsel.” Commonwealth v. Flowers, 113 A.3d
1246, 1250 (Pa. Super. 2015) (citations and footnote omitted).
In this case, Attorney Turner’s Anders brief complies with the above-
stated requirements. Namely, he includes a summary of the relevant factual
and procedural history, he refers to portions of the record that could
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arguably support Appellant’s claims, and he sets forth his conclusion that
Appellant’s appeal is frivolous. He explains his reasons for reaching that
determination, and supports his rationale with citations to the record and
pertinent legal authority. Attorney Turner also states in his petition to
withdraw that he has supplied Appellant with a copy of his Anders brief.
Additionally, pursuant to a per curiam order issued by this Court on
December 21, 2016, Attorney Turner filed, on January 3, 2017, a copy of a
letter directed to Appellant in which Attorney Turner informs him of the
rights enumerated in Nischan. Accordingly, counsel has complied with the
technical requirements for withdrawal.
Next, this Court must determine if Appellant’s issues are frivolous, and
ascertain if there are any other non-frivolous issues he could pursue on
appeal. In this vein, we have reviewed the certified record, the briefs of the
parties, and the applicable law. Additionally, we have reviewed the thorough
opinion of the Honorable Sandy L.V. Byrd of the Court of Common Pleas of
Philadelphia County. We conclude that Judge Byrd’s extensive, well-
reasoned opinion accurately disposes of the two issues that Appellant desires
to raise on appeal. Accordingly, we adopt Judge Byrd’s opinion as our own
and conclude, for the reasons set forth therein, that Appellant’s issues are
frivolous. Additionally, our independent review of the record reveals no
other, non-frivolous issues that Appellant could raise on appeal.
Consequently, we affirm Appellant’s judgment of sentence and grant
counsel’s petition to withdraw.
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Judgment of sentence affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/1/2017
-5-
Circulated 02/09/2017 10:38 AM
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP-51-CR-0009073-2009
CP-51.CR-0009()73-:1009 Comm. v. 8orgos·Leon, Euieb!o
OJ>;ll,on
v. SUPERIOR COURT
EUSEBIO BORGOS-LEO~
I I
II I I/Ill// I IllII1111 Ill
7432053401
_ 1483 EDA 2015
FILED OPINION
-. APR .12 2016
Byrd, J.
Crlminal Appeals Unit
First Judicial District of PA .
After a jury trial commencing on March 29, 2011, defendant Eusebio Borgos-Leon was
convicted of involuntary deviate sexual intercourse, unlawful contact with a minor, corruption of
minors, rapeby forcible compulsion, rape of a child, and possession of an instrument of crime.
Defendant's sentencing was deferred until after the Megan's Law hearing was held.:
Pursuant to this court's order for an assessment by the Sexual Offenders Assessment
Board, Dr. Barbara Ziv, a member of the Board, submitted her report on June 27, 2011. The
Commonwealth filed a praecipe on July 7, 2011, requesting a hearing to determine whether
defendant should be classified as a sexually violent predator pursuant to 42 Pa. C.S. §9795.4.
Following a Megan's Law hearing on September 30, 2011, defendant was declared a sexually
violent predator by this court. On October 5, 2011, defendant was sentenced to an aggregate
imprisonment term of twenty (20) to forty (40) years in a state correctional institution.
Defendant did not file an appeal. On April 8, 2013, defendant filed a pro se petition
under the Post Conviction Relief Act (PCRA). After the appointment of counsel, defendant filed
an amended PCRA petition wherein he sought the reinstatement of his appellate rights on
Commw. v. Eusebio Borgos-Leon Page 1 of 18
December 28, 2014. Upon application of defendant and with the agreement of the
Commonwealth, his direct appeal rights were reinstated nunc pro tune on May 15, 2015. A
notice of appeal was filed on May 18, 2015. On May 19, 2015, this court ordered him to file a
statement of matters complained of on appeal. Defendant filed a preliminary statement on May
28, 2015 due to an incomplete set of notes of testimony. After receiving a complete set of notes
of testimony, defendant filed a supplemental statement on December 28, 2015.
STATEMENT OF FACTS
At trial evidence was presented which when viewed in the light most favorable to the
Commonwealth as the verdict winner established the following. Between June 2006 and April
2009, defendant sexually assaulted M.S. by penetrating her vagina and anus with his penis. M,S.
was approximately ten (10) years of age in June 2006 and approximately thirteen (13) years of
age when the assaults ended in Apri1 2009. These assaults occurred while· defendant lived with
his girlfriend, Isabella Reyes- Villanueva, in her home with her grandchildren, M.S. and M.S. 's
brother, and her mother and the children's great grandmother, Luz Maria' Villanueva-Santiago.'
N.T. 03/30/2011, pp. 24-75, 83-142; N.T. 03/31/2011, pp. 77-126; N.T. 04/01/2011, pp. 13-52.
Before M.S. went to bed, defendant would order her to meet him downstairs in the living
room around 2:00 a.m. When she came downstairs, defendant either pulled M.S.'s pants down
or ordered M.S. to pull her pants down. On some occasions, defendant penetrated M.S.'s anus
with his penis while she knelt on the floor with her face and stomach against the sofa. At some
point, defendant would stop the sexual assault and leave, and M.S. would return to her bedroom
upstairs. On other occasions, defendant penetrated M.S.'s vagina with his penis during these
I
Defendant began to sexually abuse M.S. shortly after he. moved into Ms. Reyes-Villanueva's home in Puerto Rico.
At that time, M.S. was approximately eight (8) or nine (9) years of age. Defendant continued to sexually abuse her
while he lived with M.S. and her family from June 2006 to April 2009. At the time of trial, M.S. was fifteen (15)
years of age.
Commw. v. Eusebio Borgos-Leon Page 2 of 18
sexual assaults. He forced M.S. to place her legs upward against his chest while she lay on her
back on the sofa. At some point, defendant would stop the sexual assault and leave, and M.S.
would return to her bedroom upstairs. At trial, M.S. testified that defendant did not ejaculate and
that he never wore a condom when he performed these acts of sexual assault. The sexual
assaults occurred while M.S.'s grandmother, great grandmother, and brother were sleeping in
their rooms upstairs. M.S. testified that this happened almost every Saturday while they lived in
Philadelphia. N.T. 03/30/2011, pp. 83-142.
At trial, M.S. stated that she followed defendant's orders because she was afraid that he
would hit her if she did not comply. However, there were times when she would sleep past 2:00
a.m., and defendant would be angry with her the next day because she did not meet him·
downstairs. M.S. told no one about being sexually abused by defendant. She stated that she
would forget about the sexual abuse the next day. She testified that, aside from defendant
sexually abusing her, she used to think that he was a good person because he would always buy
things for her and her brother, and treated them nicely. Her grandmother and great grandmother
testified that they knew that defendant went downstairs in the middle of the night, but they did
not know that he was sexually abusing M.S.2 This changed one early morning on or around
April 13, 2009, when defendant pulled out a knife and forced M.S. to engage in anal and vaginal
sex with him. Defendant was angry with M.S. because she had failed to meet him downstairs at
2:00 a.m. as ordered. Instead, she went downstairs around 5:00 a.m, When she came
downstairs, defendant ordered M.S. to lie on the sofa and to cover her mouth with two towels.
M.S. did not initially comply and began to cry. Defendant then forcefully squeezed her face and
placed the sharp blade of the knife against the right side of her neck. In fear, M.S. complied and
2
At trial, M.S.'s grandmother and great grandmother both testified that they were taking medication that helped
them sleep through the night during this time period.
Commw. v. Eusebio Borgos-Leon Page 3 of 18
covered her mouth with the towels. Defendant ordered her to pull her pants down and to go to a
chair in the living room, and she did. Defendant pulled down his pants and penetrated M.S. 's
anus with his penis while her knees were bent on the chair. M.S. eventually moved away
· because the penetration caused her pain. Defendant stopped, and put M.S. on the sofa where he
stood in front of her and put M.S. 's legs up against his chest with her back on the sofa.
Defendant then penetrated M.S.'s vagina with his penis. M.S. pushed defendant away when the
penetration began to hurt and he released her. N.T. 03/30/2011, pp. 83-142; N.T. 03/31/2011,
pp. 77-126.
M.S. then returned upstairs to the bedroom she shared with her great grandmother, Ms.
Villanueva-Santiago. M.S. was crying and shaking and had bruises around her neck. When
M.S. entered the bedroom, Ms. Villanueva-Santiago asked her what happened. Ms. Villanueva-
Santiago stated that she observed M.S. appearing "like a mess, like she was being pushed
through a knoll, washing machine with rolls. Her face, the neck." M.S. told Ms. Villanueva-
Santiago how defendant had sexually abused her earlier that morning. She also told Ms.
Villanueva-Santiago that defendant had sexually abused her on prior occasions. M.S. told Ms.
Villanueva-Santiago that she had not told anyone because she was afraid of defendant hitting
her. Ms. Villanueva-Santiago told M.S. to tell her grandmother the next day. Because M.S.
could not fall asleep, Ms. Villanueva-Santiago escorted M.S. downstairs after M.S. showered and
dressed. They came downstairs and encountered defendant, who shook his finger at M.S. and
said: "Maybe I will not do to you what I wanted to do." On her way to the kitchen, Ms.
Villanueva-Santiago observed defendant's tee-shirt and the towels he used on a table in the
living room. She saw the knife on a comer table in the dining room. N. T. 03/30/2011, pp. 83-
142; N.T. 04/01/2011, pp. 13-52.
Commw. v. Eusebio Borgos-Leon Page 4 of 18
Afterwards, M.S. went to school. Although Ms. Reyes-Villanueva had been raising M.S.
since she was about four-months-old, M.S. 's mother, Ivette Zabala, visited daily to see M.S. and
her brother after school. When M.S. returned home from school, Ms. Reyes-Villanueva
observed defendant shaking his finger at M.S. as she sat in the dining room doing her homework
with Ms. Zabala's help. Ms. Reyes-Villanueva asked defendant why he was shaking his finger at
M.S., and he replied: "For her not to lie to me." While M.S. was in the dining room, she began
to tell Ms. Zabala about being sexually abused by defendant and told her that she was unable to
go into details because defendant was in the next room. As a result, Ms. Zabala took M.S. to her
aunt's house which was about three (3) to four (4) houses down and across the street so that M.S.
could talk to her outside of defendant's presence. Ms. Zabala then returned and asked Ms.
Reyes-Villanueva to come with her to the aunt's house. When Ms. Reyes-Villanueva arrived,
M.S. told them that defendant had sexually abused her earlier that morning and that he had been
sexually abusing her since they lived in Puerto Rico. M.S. told them that defendant would
sexually abuse her often on Saturdays even if she was menstruating at the time. M.S. was crying
and became further upset when Ms. Reyes-Villanueva stated that she wanted to report the sexual
abuse to police.· N.T. 03/30/2011, pp. 24-75, 83-142; N.T. 03/31/2011, pp. 77-126; N.T.
04/01/2011, pp. 13-52.
After M.S. disclosed the sexual abuse to her grandmother, Ms. Reyes-Villanueva
returned home and confronted defendant. Ms. Reyes-Villanueva told defendant to leave because
he sexually abused M.S. Defendant denied sexually abusing M.S. Ms. Reyes-Villanueva then
left her house and went back to the aunt's house to check on M.S., who was still upset. About
fifteen (15) minutes later, Ms. Reyes-Villanueva returned home, but she did not see defendant.
He had packed his belongings and left for Puerto Rico. M.S.' s family did not initially report this
Commw. v. Eusebio Borgos-Leon Page 5 of 18
sexual abuse to police because they were afraid that M.S. would harm herself. About a week
later when M.S. calmed down, M.S. went to the 25th District Police Station with her mother and
grandmother. They met Officer Maria Santa who prepared an incident report and transported
them to the Special Victims Unit, where they provided signed statements to Detective Joseph
Jenkins on April 20, 2009. N.T. 03/30/2011, pp. 24-75, 83-142; N.T. 03/31/2011, pp. 77-166;
N.T. 04/01/2011, pp. 7-8, 13-52, 60-64.
On May 19, 2009, M.S. was physically examined by Dr. Maria McColgan, a child abuse
pediatrician. At trial, Dr. Sarah Frioux testified as an expert in child sexual abuse and stated that
she had reviewed Dr. McColgan's report. Dr. Frioux testified that a traumatic injury was not
observed during the examination and that a normal examination was consistent with M.S.'s
history of being slightly penetrated in her vagina and anus. Dr. Frioux further testified that any
possible trauma to M.S.'s vaginal and anal areas could have potentially healed given that the
examination was conducted approximately one month after the sexual abuse was reported. Dr.
Frioux noted that traumatic injuries can heal within four (4) days of the sexual abuse. N.T.
03/31/2011, pp. 10-56.
Defendant was arrested and transported from Puerto Rico to Philadelphia on May 21,
2009. N.T. 04/01/2011, pp. 8-9. At trial, defendant testified and denied sexually abusing M.S.
However, he admitted to being angry because no one in the house listened to him after he was no
longer working and began receiving temporary disability payments.
Commw. v. Eusebio Borgos-Leon Page 6 of 18
STATEMENT OF MATTERS COMPLAINED OF ON APPEAL
Defendant raised the following issues in his supplemental statement of matters
complained of on appeal, in accordance with Pennsylvania Rule of Appellate Procedure
1925(b):3
1) The evidence was insufficient to support the verdict of guilty as
to the charges of Invol. Deviate Sexual Intercourse W/Child;
Unlawful Contact With Minor - Sexual Offenses; Corruption
of Minors; Rape Forcible Compulsion; Rape of Child and Poss
Instrument Of Crime W/Int. ·
2) The court erred in finding defendant to be a Sexually Violent
Predator (SVP) based on the assessment of Doctor Barbara Ziv
at Megan's Law hearing as to whether defendant meets the
statutory criteria to be deemed a sexually violent predator, as
said finding increased the prescribed range of penalties to
which defendant was exposed and thus violated his 6th
amendment right to have a jury find those facts beyond a
reasonable doubt. ·
DISCUSSION
Defendant contends that there was insufficient evidence to support his convictions of
involuntary deviate sexual intercourse, unlawful contact with a minor, corruption of minors, rape
by forcible compulsion, rape of a child, and possession of an instrument of crime. A person is
guilty of involuntary deviate sexual intercourse when he has engaged in deviate sexual
. intercourse with a complainant by forcible compulsion or "by threat of forcible compulsion that
would prevent resistance by a person of reasonable resolution." 18 Pa. C.S. §3123(a)(l)-(2).
"Forcible compulsion" is defined as "[c]ompulsion by use of physical, intellectual, moral,
emotional or psychological force, either express or implied." 18 Pa. C.S. §3101. The element of
forcible compulsion or threat of forcible compulsion is "inherent in the situation in which an
3
The following is a verbatim account of defendant's Statement.
Commw. v. Eusebio Borgos-Leon Page 7 of 18
adult who is with a child who is younger, smaller, less psychologically and emotionally mature,
and less sophisticated than the adult, instructs the child to submit to the performance of sexual
acts. This is especially so where the child knows and trusts the adult. In such cases, forcible
compulsion or the threat of forcible compulsion derives from the respective capacities of the
child and the adult sufficient to induce the child to submit to the wishes of the adult ('prevent
resistance'), without the use of physical force or violence or the explicit threat of physical force
or violence." Commonwealth v. Rhodes, 510 Pa. 537, 557, 510 A2d 1217, 1227 (1986).
Furthermore, "[t]he determination of whether moral, psychological or intellectual force exists in
a given case is to be made in light of the totality of the circumstances, and important factors to be
considered include the respective ages of the victim and the accused, the respective mental and
physical conditions of the victim and the accused, the atmosphere and the physical setting in
which the incident was alleged to have taken place, the extent to which the accused may have
been in a position of authority, domination, or custodial control over the victim, and whether the
victim was under duress." Commonwealth v. Ruppert, 579 A.2d966, 968 (Pa. Super. 1990).
Involuntary deviate sexual intercourse may also occur when a defendant has engaged in
deviate sexual intercourse with a complainant "who is less than 16 years of age and the
[defendant] is four or more years older than the complainant and the complainant and the
[defendant] are not married to each other." 18 Pa. C.S. §3123(a)(7). Deviate sexual intercourse
is defined as "[sjexual intercourse per os or per anus between human beings and any form of
sexual intercourse with an animal." 18 Pa. C.S. §3101. According to Section 3101 of the
Crimes Code, "[ s]exual intercourse" is a term that '