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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
HECTOR SUAREZ, : No. 3839 EDA 2016
:
Appellant :
Appeal from the Judgment of Sentence, November 10, 2016,
in the Court of Common Pleas of Monroe County
Criminal Division at No. CP-45-CR-0000523-2014
BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 24, 2017
Hector Suarez appeals from the November 10, 2016 aggregate
judgment of sentence of 36 to 120 months’ imprisonment imposed after a
panel of this court remanded this matter for resentencing on appellant’s
convictions for indecent assault, endangering the welfare of children
(“EWOC”), and corruption of minors.1 After careful review, we affirm the
judgment of sentence.
The relevant facts and procedural history of this case are as follows.
Appellant was charged at two separate criminal informations with multiple
crimes following accusations by his eleven-year-old granddaughter, N.D.,
that appellant had licked and touched her “private part” on numerous
1
18 Pa.C.S.A. §§ 3126, 4304, and 6301, respectively.
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occasions. (See trial court opinion, 5/15/15 at 1-2, 4.) Specifically, the
criminal information filed at No. CP-45-CR-0000523-2014 referred to the
period between May 1 and September 7, 2013, and set forth the following
charges: two counts of criminal attempt, four counts of aggravated indecent
assault, indecent assault, EWOC, and corruption of minors.2 The criminal
information filed at No. CP-45-CR-00001814-2014 referred to the period
between November 1, 2012 and March 12, 2013, and set forth the following
charges: unlawful contact with a minor,3 indecent assault, EWOC, and
corruption of minors.
These two cases were consolidated, and appellant proceeded to a jury
trial on October 29, 2014. As we recognized in our prior memorandum, the
verdict sheet did not indicate that appellant was charged with multiple
counts of each crime, the date of any of the offenses, or the criminal
information number corresponding to each offense. See Commonwealth
v. Suarez, 2016 WL 5210886, at *1, 3 (Pa.Super. July 27, 2016)
(unpublished memorandum). Rather, the record reveals that the verdict
sheet listed only five charges for the jury’s consideration: (1) aggravated
indecent assault of a child; (2) indecent assault of a person less than
13 years of age; (3) EWOC; (4) corruption of minors; and (5) involuntary
2
Id. §§ 901, 3125(a)(7) and (b), 3126(a)(7), 4304, and 6301(a)(1)(ii),
respectively.
3
Id. § 6318.
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deviate sexual intercourse (“IDSI”) with a child. (Id.; see also verdict
sheet, 10/30/14.) Following a two-day trial, appellant was found guilty of
indecent assault of a person less than 13 years of age, EWOC, and
corruption of minors on October 30, 2014. The jury found appellant not
guilty of aggravated indecent assault and IDSI.
On January 23, 2015, the trial court sentenced appellant to an
aggregate term of 36 to 120 months’ imprisonment. Specifically, at
No. CP-45-CR-0000523-2014, the trial court sentenced appellant to
concurrent terms of 18 to 60 months’ imprisonment for indecent assault and
corruption of minors, graded as third-degree felonies, and a consecutive
term of 18 to 60 months’ imprisonment for EWOC, also graded as a
third-degree felony. At No. CP-45-CR-00001814-2014, the trial court
imposed concurrent terms of 18 to 60 months’ imprisonment for the
convictions of indecent assault, EWOC, and corruption of minors, to be
served concurrent to the aggregate sentence imposed at No. CP-45-CR-
0000523-2014.
On July 27, 2016, a panel of this court vacated the judgment of
sentence in its entirety on the basis “that the trial court erred in imposing
two sentences for each guilty verdict” and remanded this matter for
resentencing. As noted, on November 10, 2016, the trial court resentenced
appellant at No. CP-45-CR-0000523-2014 to 18 to 60 months’ imprisonment
for EWOC and a consecutive term of 18 to 60 months’ imprisonment for
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corruption of minors. (See sentencing order, 11/10/16; certified record
at 6.) Thus, appellant’s aggregate judgment of sentence remained 36 to
120 months’ imprisonment. On November 18, 2016, appellant filed a
motion for reconsideration of sentence, which was denied by the trial court
that same day. This timely appeal followed on December 14, 2016. On
December 15, 2016, the trial court entered an order directing appellant to
file a Pa.R.A.P. 1925(b) statement within 21 days. Appellant complied with
the trial court’s order and filed a timely Rule 1925(b) statement on
January 4, 2017. Thereafter, on January 10, 2017, the trial court filed its
comprehensive Rule 1925(a) opinion.
Appellant raises the following issues for our review:
I. Did the trial court abuse its discretion by
grading the indecent assault person less than
13 years of age and endangering the welfare of
a child as felonies of the third degree finding
there was a course of conduct when there were
two distinct acts that were alleged to occur a
significant time apart but only one of the acts
was for this case?
II. Did the trial court abuse its discretion by
allowing the charges to proceed under a course
of conduct?
III. Did the trial court abuse its discretion in
sentencing [appellant] to consecutive
sentences for each of the charges as the
conviction for both charges all relate to the
same instance; the sentences should have
been run concurrent, by making the sentences
consecutive the sentence is clearly
unreasonable under the circumstances?
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IV. Did the trial court abuse its discretion by not
setting aside the verdict to all counts where it
was against the weight of the evidence for a
felony conviction for course of conduct?
V. Did the trial court abuse its discretion by not
setting aside the verdict to all counts where it
was against the sufficiency of the evidence for
a felony conviction for course of conduct?
Appellant’s brief at 5. For the ease of our discussion, some of appellant’s
issues will be addressed simultaneously and/or in a slightly different order
than presented in his brief.
Preliminarily, we note that any challenge to the trial court’s purported
sentence for the crime of indecent assault person less than 13 years of age
is moot, as our review of the November 10, 2016 sentencing order reveals
that the trial court imposed no sentence with respect to indecent assault at
No. CP-45-CR-0000523-2014. Moreover, to the extent that appellant argues
that his sentence is improper because the trial court imposed consecutive
sentences, we find that appellant is not entitled to relief. This court has long
recognized that bald excessiveness claims premised on imposition of
consecutive sentences do not raise a substantial question for our review.
See Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa.Super. 2015)
(en banc) (stating, “[a] court’s exercise of discretion in imposing a sentence
concurrently or consecutively does not ordinarily raise a substantial
question[]”), appeal denied, 126 A.3d 1282 (Pa. 2015); see also
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Commonwealth v. Ahmad, 961 A.2d 884 (Pa.Super. 2008);
Commonwealth v. Pass, 914 A.2d 442 (Pa.Super. 2006).
Appellant further argues that the trial court abused its discretion in
sentencing him to consecutive sentences for EWOC and corruption of minors,
“as the conviction for both charges relate to the same instance[.]”
(Appellant’s brief at 14.) In support of this claim, appellant maintains that
“the sentences should have been run concurrent [and] by making the
sentences consecutive the sentence is clearly unreasonable under the
circumstances.” (Id.)
Upon review, we note that a prior panel of this court addressed this
identical sentencing claim in appellant’s initial appeal and concluded that it
lacks merit. See Commonwealth v. Suarez, 2016 WL 5210886, at *7-8
(Pa.Super. July 27, 2016) (unpublished memorandum). Accordingly, we
adopt the reasoning as set forth in our prior memorandum with respect to
the resentence.
Appellant further argues that the trial court erred in grading each
offense for which he was convicted as a third-degree felony, based upon a
“course of conduct.” (Appellant’s brief at 9-13.) In a related argument,
appellant contends that there was insufficient evidence to establish a
continuing “course of conduct” necessary to sustain his convictions for EWOC
and corruption of minors. (Id. at 17-18.) Appellant further avers that the
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verdict “was against the weight of the evidence for a felony conviction for
course of conduct[.]” (Id. at 16.)
Our review indicates that all three of these arguments were
comprehensively addressed in this court’s prior memorandum. See
Commonwealth v. Suarez, 12016 WL 5210886 (Pa.Super. 2016)
(unpublished memorandum at *3-5, 8). With respect to the sentencing
claim presented by appellant’s “course of conduct” argument, we find that
the trial court’s grading of appellant’s offenses as third-degree felonies was
entirely proper and the trial court did not abuse its discretion in this regard.
Moreover, to the extent appellant raises sufficiency and weight claims in
relation to his “course of conduct” argument, we note that this court has
long recognized that a limited grant of relief for resentencing does not entitle
appellant to litigate on appeal claims unrelated to the resentencing. See
Commonwealth v. Anderson, 801 A.2d 1264 (Pa.Super. 2002)
(dismissing an appeal following remand for resentencing where an appellant
raised new issues on appeal challenging his conviction). In reaching this
decision, the Anderson court reasoned that, “having been re-sentenced
following remand, appellant could not file another direct appeal attacking his
conviction; the only issues reviewable in a direct appeal would be challenges
to the sentence imposed following remand.” Id. at 1266. Accordingly,
appellant’s sufficiency and weight of the evidence claims are not before this
court and may not be addressed.
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For all the forgoing reasons, we affirm the November 10, 2016
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/2017
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