J. S23044/20
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
RAMON JAQUEZ MARTINEZ, : No. 1396 EDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered March 22, 2016,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0001947-2015
BEFORE: NICHOLS, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 24, 2020
Ramon Jaquez Martinez appeals from the March 22, 2016 judgment of
sentence entered in the Court of Common Pleas of Philadelphia County after
his conviction in a waiver trial of rape of a child, sexual assault, corruption of
minors, indecent assault person less than 13 years of age, indecent exposure,
and simple assault.1 The trial court imposed an aggregate sentence of 7½ to
15 years of incarceration followed by 5 years of probation. We affirm.
The trial court set forth the following:
Appellant raped his girlfriend’s daughter [the “victim”]
on numerous occasions beginning when she was
approximately 6 or 7 years old until the time her
mother [“Mother”] found [a]ppellant in [the victim’s]
bed when she was 9 years old in 2014.
1 18 Pa.C.S.A. §§ 3121(c), 3124.1, 6301, 3126(a)(7), 3127(a), and 2701(a),
respectively.
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[The victim] lived with her [Mother], [a]ppellant, who
was [M]other’s boyfriend, and [a]ppellant’s brother,
Alenjandro [sic] Martinez, along with several children
of [Mother’s]. Beginning when [the victim] was in the
2nd grade, [a]ppellant began engaging in sexual
relations with the child. These incidents would happen
in both the kitchen and in her bedroom, as well as in
[M]other’s bedroom. She described [appellant] taking
off her pants and placing his exposed penis in her
vagina. He told her not to tell anyone what he did.
One day, he was sitting on her bed, and [M]other
walked into the room. Appellant left the room. Over
the next few days, [the victim’s] [M]other asked her
multiple times if [a]ppellant had touched her. [The
victim] at first did not tell [Mother] what had been
happening to her. However, after 2 days and
[Mother’s] asking her multiple times, [the victim] told
her [M]other that [a]ppellant had, in fact, been
“touching” her.
[Mother] took [the victim] to St. Christopher’s
Hospital for Children the same day [the victim] told
her about what [a]ppellant had been doing to her.
Prior to going to the hospital, [Mother] told [the
victim] to tell the hospital staff what happened, but
she told her not to tell anyone who did it. [Mother]
told [the victim] to say she didn’t know who it was
who had been raping her. After medical personnel
examined [the victim, M]other spoke to the police and
subsequently took [the victim] to have a forensic
interview at the Philadelphia Children’s Alliance (PCA).
Again, [Mother] told [the victim] to tell the interviewer
that she did not know who raped her.[Footnote 1] A
short time later, [the victim] went to live with her
father [(“Father”)]. It was then that she told [F]ather
all that had been happening to her in the home with
[M]other, [a]ppellant and Alejandro
Martinez.[Footnote 2] [Father] took [the victim] back
to PCA where another forensic interview was
conducted. [The victim] told the interviewer that
name of [a]ppellant and his brother who had been
assaulting her and told them that [Mother] told her to
lie. Police arrested [a]ppellant for Rape and related
offenses.
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J. S23044/20
[Footnote 1] [Mother] was arrested . . .
for Intimidation of a Witness, Endangering
Welfare of a Child and Hindering
Apprehension. She was convicted of
Endangering Welfare of a Child and
Hindering Apprehension.
[Footnote 2] Alejandro Jaquez Martinez
was arrested . . . for Rape and related
offenses. He was found not guilty.
Trial court opinion, 9/30/19 at 2-4 (record citations omitted).
Following imposition of sentence, appellant did not file post-sentence
motions or a direct appeal. Rather, on December 1, 2016, appellant filed a
pro se PCRA2 petition. Appointed counsel then filed an amended PCRA
petition that raised trial counsel’s ineffectiveness for failure to file a direct
appeal. The Commonwealth did not oppose the grant of PCRA relief. The trial
court then reinstated appellant’s direct appeal rights nunc pro tunc.
Appellant filed a timely notice of appeal. The trial court ordered appellant to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Appellant timely complied. The trial court then filed its
Rule 1925(a) opinion.
Appellant raises the following issue for our review:
Was the evidence insufficient to sustain the guilty
verdicts for rape and sexual assault as [a]ppellant
asserts there was insufficient evidence of any
penetration, however slight[?]
2 Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.
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J. S23044/20
Appellant’s brief at 7.
In his brief, appellant “acknowledges that the uncorroborated testimony
of a complainant may be sufficient, [but] here, the evidence was much too
insufficient and lacking to sustain guilty verdicts because of the numerous
issues with the [victim’s] testimony.” (Appellant’s brief at 13.) Appellant then
points out that “other children and at least one other adult were present” in
the home, “none of whom noticed anything.” (Id. at 14.) Appellant goes on
to attack the victim’s credibility by highlighting an inconsistency between her
testimony and her PCA interview and informing this court that no forensic
evidence corroborated her testimony. Appellant contends that the victim “was
at best greatly confused and mistaken as to being assaulted by [a]ppellant.”
(Id.) Appellant calls this court’s attention to his cooperation with police
wherein he explained in his police statement “that perhaps there was
inadvertent contact while the child slept,” but “there was no penetration.” (Id.
at 15.) In so doing, appellant challenges the weight of the evidence, not its
sufficiency. See, e.g., Commonwealth v. Wilson, 825 A.2d 710, 713-714
(Pa.Super. 2003) (reiterating that a review of the sufficiency of the evidence
does not include a credibility assessment; such a claim goes to the weight of
the evidence); Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super.
1997) (restating that the fact-finder makes credibility determinations, and
challenges to those determinations go to the weight of the evidence, not the
sufficiency of the evidence).
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Appellant failed to raise a weight claim with the trial court in a motion
for a new trial “(1) orally, on the record, at any time before sentencing; (2) by
written motion at any time before sentencing; or (3) in a post-sentence
motion” as required by Pa.R.Crim.P. 607(A). Therefore, we have nothing to
review.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/24/2020
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