J-S73034-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOSE LUIS OLIVO, :
:
Appellant : No. 556 MDA 2017
Appeal from the Judgment of Sentence October 26, 2016
in the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0004662-20126
BEFORE: OLSON, DUBOW, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 04, 2018
Jose Luis Olivo (Appellant) appeals from the judgment of sentence
entered October 26, 2016, after he was found guilty of rape by forcible
compulsion, rape of a child, involuntary deviate sexual intercourse (IDSI) by
forcible compulsion, IDSI with a child, indecent assault, endangering the
welfare of children, indecent exposure, and corruption of minors. We affirm.
As we write for the parties, we need not set forth a detailed recitation
of the factual history herein. Pertinent to this appeal, on February 17, 2012,
S.C., who was seven years old at the time, disclosed to her grandmother that
she was being sexually abused by her mother’s boyfriend, Appellant. “While
this report dealt with a specific incident that allegedly took place on February
14, 2012, S.C. explained at trial how that incident was part of an ongoing
pattern of sexual contact that had lasted several years and had occurred in
* Retired Senior Judge assigned to the Superior Court
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several locations.” Id. at 1. As a result of this disclosure and subsequent
investigation, Appellant was charged with the aforementioned crimes.
Following a jury trial, Appellant was convicted of all eight charged crimes
and was sentenced by the trial court to an aggregate term of 20½ to 60 years’
incarceration, followed by 17 years’ probation. Appellant filed a post-sentence
motion on November 14, 2016, claiming, inter alia, that the verdict was
against the weight of the evidence and requesting the trial court to reconsider
his sentence. On March 7, 2017, following a hearing, the trial court denied
Appellant’s motion. This timely-filed appeal followed, wherein Appellant
presents the following issues for our review.1
1. Whether the trial court erred in denying Appellant’s post
sentence motion challenging the weight of the evidence as the
testimony established that [S.C] did not disclose any
penetration of her genitals to the initial responding officer,
[S.C’s] mother who filed a [protection from abuse (PFA)] on
behalf of [S.C.], or to CYS during their initial interview?
2. Whether the sentence imposed was manifestly excessive,
unreasonable and inconsistent with the provisions of the
sentencing guidelines and insufficient reasons appear on the
record supporting consecutive sentences for rape by forcible
compulsion and rape of a child when the criminal act was one
in [sic] the same for both charges?
Appellant’s Brief 5 (suggested answers and unnecessary capitalization
omitted).
1
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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We begin our review of Appellant’s weight-of-the-evidence argument by
setting forth our standard of review.
The decision of whether to grant a new trial on the basis of a
challenge to the weight of the evidence is necessarily committed
to the sound discretion of the trial court due to the court’s
observation of the witnesses and the evidence. A trial court
should award a new trial on this ground only when the verdict is
so contrary to the evidence as to shock one’s sense of justice. …
Our review on appeal is limited to determining whether the trial
court abused its discretion in denying the motion for a new trial
on this ground.
Commonwealth v. Chamberlain, 30 A.3d 381, 396 (Pa. 2011) (citations
omitted).
A true weight of the evidence challenge concedes that sufficient
evidence exists to sustain the verdict but questions which
evidence is to be believed. We also observe that [i]n criminal
proceedings, the credibility of witnesses and weight of evidence
are determinations that lie solely with the trier of fact, [which] is
free to believe all, part, or none of the evidence.
Commonwealth v. Lewis, 911 A.2d 558, 566 (Pa. Super. 2006) (quotation
marks and citations omitted). “Not merely an error in judgment, an abuse of
discretion occurs when the law is overridden or misapplied, or the judgment
exercised is manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill-will, as shown by the evidence on record.” Commonwealth v.
Handfield, 34 A.3d 187, 208 (Pa. Super. 2011) (quoting Commonwealth v.
Cain, 29 A.3d 3, 6 (Pa. Super. 2011)).
In support of his claim, Appellant asserts that S.C.’s testimony “was
fraught with lies, half-truths, and fabrications, and motivated by S.C.’s
mother[.]” Appellant’s Brief at 17. Appellant claims that, with the assistance
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of her mother, S.C. “falsely added details to the original complaint in an effort
to bolster the credibility” of S.C. Id. at 19. Specifically, Appellant notes that
neither the statement given to the responding police officer and CYS nor the
allegations contained in the PFA filed by mother on S.C.’s behalf contain an
allegation of forcible penetration, which S.C. later testified to at trial and
recounted to numerous individuals involved in the investigation. Id. at 14.
The trial court responded to Appellant’s claim as follows.
[Appellant] essentially argues that a seven year-old child should
have incorporated a particular legal term of art into the description
of years of sexual abuse she gave to every interviewer. This
meritless argument is absurd. In sum, the mere fact that a child
victim did not mouth talismanic magic legal terms during certain
interviews but effectively did so during others fails to convince me
that [Appellant] did not penetrate S.C.’s vagina with his penis just
as this line of argument failed to convince the jury at trial.
Indeed, the jury evaluated S.C.’s testimony, including the
capable cross-examination by [Appellant’s] trial attorney, during
which S.C. presented substantial evidence that [Appellant] had
“penetrated” her vagina with his penis. Specifically, S.C. testified
that, during the February 14, 2012 incident, [Appellant] had
“pulled his pants down and got[ten] on top of her and stuck ... his
penis a little inside of her.” Moreover, S.C. told the examining
nurse during the February 20, 2012 examination at Reading
Hospital, that [Appellant] had, among other things, “exposed
himself to her,” “kissed her” and had “used force” to have “vaginal
contact . .. with [his] penis.” Critically, on cross-examination, S.C.
clarified that [Appellant] would insert his penis “all the way in” to
her vagina, adding that she would ask [Appellant] to stop but that
he would only stop when S.C.’s mother’s car appeared on the
cameras. Such testimony, standing alone, would support the
jury’s conclusion that [Appellant] had “penetrated” S.C.’s vagina
with his penis.
However, this testimony was supported by additional
evidence including, among other things, S.C.’s testimony that the
February 14, 2012 incident was part of an ongoing pattern of
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abuse that occurred in multiple residences and extended over
several years. Moreover, the jury heard about S.C.’s disclosure
to her mother as indicated on the PFA Order as well as how S.C.
had informed the nurse during the February 20, 2012 examination
that [Appellant] would repeatedly kiss and grab S.C. and would
pull his pants down in front of her and that, when S.C. would
resist, [Appellant] would lay [sic] on her and “tr[y] to put his thing
in [her].” Furthermore, the jury watched the video of the
February 29, 2012 forensic interview and observed the anatomical
diagrams used during the interview to clarify what she had meant
when she referred to private areas as she described [Appellant’s]
repeated violation of her body and his position of trust. In
addition, S.C. testified that [Appellant] would touch her private
part “with his hands and his private part,” that her clothes would
be taken off, that she could see [Appellant’s] private part, that
[Appellant] would touch her butt with his private part, would kiss
her, and would put his private part in her mouth.
In other words, [Appellant’s] contentions are meritless
because they are at variance with both the record and common
sense. While S.C. may have disclosed years of abuse piecemeal
and may not have revealed every detail of [Appellant’s] abuse to
every individual who questioned her about it, such piecemeal
disclosure would not be unexpected of a child like S.C. who had
endured years of traumatic sexual abuse by [Appellant].
Moreover, [Appellant’s] reliance on the description of [Appellant’s]
conduct contained in the PFA is misplaced. Indeed, the PFA noted
that [Appellant] had “pulled his pants down and got[ten] on top
of her and . .. stuck . . . his penis a little inside of her.” Such a
description fits the definition of “penetration.”
Put simply, [Appellant] continues to recycle the same
arguments that failed to convince the jury at trial. [Appellant] has
similarly failed to present any evidence that would lead me to
disturb their conclusions. While [Appellant] might disagree with
the jury’s verdicts, there is nothing in the record that even hints
that those verdicts were “shocking to the judicial conscience.”
Therefore [Appellant’s] challenge to his convictions as against the
weight of the evidence must fail.
Trial Court Opinion, 7/17/2017, at 13-15 (citations omitted).
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We discern no abuse of discretion in the trial court’s conclusion. As the
trial court correctly observed, it is within the province of the jury, sitting as
fact-finder, to review the evidence and assess the credibility of the testifying
witnesses. See Commonwealth v. Miller, 2017 WL 4639576 (Pa. Super.
2017) (“Resolving contradictory testimony and questions of credibility are
matters for the finder of fact.”). Moreover, Appellant’s claim that S.C.’s
testimony was fabricated is a challenge to the victim’s credibility, not the
weight of the evidence. See id. (“[I]n order for a defendant to prevail on a
challenge to the weight of the evidence, the evidence must be so tenuous,
vague and uncertain that the verdict shocks the conscience of the court.”)
(quotation marks and citation omitted).
Furthermore, as alluded to by the trial court, Appellant questioned
testifying witnesses about S.C.’s disclosures and the addition of details
regarding penetration that Appellant claims S.C. did not disclose in her original
statements. Nonetheless, in light of the verdict, the jury, sitting as finder of
fact, found the Commonwealth had met its burden. See Commonwealth v.
Chambers, 599 A.2d 630, 642 (Pa. 1991) (“Issues of credibility are properly
left to the trier of fact for resolution, and the finder of fact is free to believe
all, part, or none of the evidence.”). No relief is due.
Appellant’s final issue challenges the discretionary aspects of his
sentence.
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
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absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. 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.
***
When imposing sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant. In considering these factors, the court should refer to
the defendant’s prior criminal record, age, personal characteristics
and potential for rehabilitation.
Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)
(internal citations and quotation marks omitted).
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the following
four factors:
(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.[] § 9781(b).
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)
(some citations omitted).
The record reflects that Appellant timely filed a notice of appeal and that
Appellant preserved the issue by timely filing a motion for reconsideration of
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his sentence. Moreover, Appellant has included in his brief a statement
pursuant to Pa.R.A.P 2119(f). We now turn to consider whether Appellant has
presented substantial questions for our review.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825,
828 (Pa. Super. 2007). “A substantial question exists 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. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013)
(citation and quotation marks omitted).
In his 2119(f) statement, Appellant argues his sentence “was issued
without sufficient reasons being placed on the record and is so
disproportionate as to implicate the fundamental norms that underlie the
sentencing process.” Appellant’s Brief at 12-13. Specifically, Appellant
contends the trial court’s imposition of consecutive sentences for rape by
forcible compulsion and rape of a child was “manifestly excessive,
unreasonable and inconsistent with the sentencing guidelines[.]” Id. at 5.
Such a claim raises a substantial question for our review. See
Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015) (“[T]he
imposition of consecutive rather than concurrent sentences will present a
substantial question in only the most extreme circumstances, such as where
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the aggregate sentence is unduly harsh, considering the nature of the crimes
and the length of imprisonment.”) (citations and internal quotation marks
omitted).
While Appellant’s question presented challenges the reasons, or lack of
reasons, set forth by the trial court for imposing consecutive sentences, in his
argument section, Appellant focuses on the reasoning set forth by the trial
court for imposing a 15-to-20 year sentence for rape of a child. Appellant’s
Brief at 22. In his brief Appellant cites the following statement by the trial
court at sentencing.
I could tell you that the sentence that I’m about to impose is going
to consider, heavily consider, what happened to the victim in this
case. She was a young child, and I can’t imagine that this has not
[a]ffected this young child for the rest of her life based on how
young she was at the time and that your client was in a position
of trust... and the fact that I think if I give a sentence any less
than what I’m about to impose on the defendant, it would give the
public the idea that they could potentially do this and receive
something that’s a lighter sentence.
Appellant’s Brief at 22 (citation omitted). Appellant argues that the trial
court’s reasoning for imposing his sentence amounted to an abuse of
discretion. Specifically, Appellant contends that
[s]ince the trial court relied upon factors that are already
considered by the sentencing guidelines, such as the age of the
victim, as the crime requires a victim under the age of 13, an
abuse of discretion is apparent. Furthermore, although protection
of the community is an appropriate factor at sentencing, the
notion of “sending a message to the community” by imposing a
particular sentence is not a recognizable factor. By making an
“example” out of the Appellant, the trial court failed to factor in
his rehabilitative needs while incarcerated. Therefore, the trial
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court sentence was manifestly excessive, unreasonable and
inconsistent with the provisions of the sentencing guidelines.
Id. at 22-23.
Here, Appellant fails to make a cognizable argument, or cite any
authority to support the contention that the individual nature of the crime and
the age of the victim are incorporated as factors that comprise the guidelines.
See Commonwealth v. Wall, 926 A.2d 957, 967 (Pa. 2007) (holding that
“the precise age of the victim, i.e., the fact that the victim was only seven-
years-old at the time of the sexual abuse, was not an element of rape or IDSI
of a victim less than thirteen years old and could justify an above-guideline
sentence. … Additionally, [the defendant] has offered no legitimate basis to
presume that individual factors of the case], are subsumed within the
sentencing guidelines.”).
Furthermore, we note that the trial court ordered and received a pre-
sentence report (PSI) prior to sentencing. “[W]here the sentencing judge had
the benefit of a PSI, it will be presumed that he or she was aware of the
relevant information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Boyer, 856 A.2d 149, 154 (Pa. Super. 2004). Likewise, we are not persuaded
by Appellant’s argument that the sentence imposed by the trial court was done
so to make an “example” out of him. To the contrary, the record reflects that
the trial court cited ample reasoning to support the sentences imposed.
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[Appellant,] I want to say I watched this trial and I watched [S.C],
and then I watched the video of her interview, the forensic
interview that was introduced at trial, and I, you know, what really
perturbed me was the fact that you did this over such, such a
period of time, that you did this to this young girl over years and
at different residences. My recollection of the testimony was that
there was a home on Perkiomen Avenue. There was another
home in the city where this happened, and then this happened in
an apartment or a housing unit above your garage where you
work. So there were three different locations where [S.C] testified
that you sexually abused her, and, quite frankly, I can tell you
that not in this courtroom, but in one across the street, 12 people
sat there and listened to this little girl testify, and they obviously
believed everything that she said, and it really bothers me that
the fact that you tried then to conceal it. This whole -- the
testimony about the fact that this [surveillance] video was set up
[facing the adjoining alley] so that you could see the mother when
the mother would come home, and the girl knew that.
***
There was evidence that that’s how it was utilized from
[S.C.] from what I remember that she testified that [the abuse]
would stop when the mother’s vehicle would be shown on that
[surveillance] video, that the mother was now approaching the
house, because my recollection of the testimony was that the
mom was at work, and [Appellant] was home, and [S.C.] was in
his care.
***
[T]hat was the testimony, that this took place over the
course of time, and that this took place, and I could tell you that
the sentence that I’m about to impose is going to consider, heavily
consider, what happened to [S.C] in this case. She was a young
child, and can’t imagine that this has not [a]ffected this young
child for the rest of her life based on how young she was at the
time and that [Appellant] was in a position of trust. He essentially
was a caretaker when this happened. In addition to that, I have
to look out for all of us out there, and, you know, I read the
assessment report, and the assessment report while it did find
that [Appellant] is a non-violent predator, it did come to the
conclusion[,] as the Commonwealth placed on the record[,] that
[Appellant] suffers from pedophilia, so there is the possibility that
this could happen again[,] that he could reoffend. None of us
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ha[s] a crystal ball, but I do have in front of me a report that
indicates [sic]. So I’m taking in[to] consideration everything that
the [Commonwealth and defense counsel] said, taking into
consideration the impact that this conduct that I heard during the
course of the trial would have had on [S.C], taking into account
the impact that this would have on the citizens of this county, and
the fact that I think if I give a sentence any less than what I’m
about to impose on [Appellant], it would give the public the idea
that they could potentially do this and receive something that’s a
lighter sentence.
***
I think that [imposing any other sentence] would really
diminimize [sic] the testimony that we heard during the course of
-- I can’t recall at this point -- it was three or four days worth of
trial testimony. And again, I really really [sic] predominantly am
taking into account the extended period of time over which these
assaults took place at several different locations was the
testimony at the trial, and I think to do anything else would be to
diminish the seriousness of what this jury concluded when they
heard the testimony and found [Appellant] guilty.
N.T. 10/26/2016, at 21-24.
Accordingly, after a thorough review of the record and briefs, we find
Appellant has presented no issue on appeal which would convince us to disturb
his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/4/2018
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Com. v. Olivo, J.
Combined Opinion