J-S17022-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARCOS RIVERA :
:
Appellant : No. 1745 EDA 2021
Appeal from the PCRA Order Entered August 24, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0013004-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARCOS RIVERA :
:
Appellant : No. 1746 EDA 2021
Appeal from the PCRA Order Entered August 24, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0013006-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARCOS RIVERA :
:
Appellant : No. 1747 EDA 2021
Appeal from the PCRA Order Entered August 24, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002226-2016
BEFORE: BOWES, J., LAZARUS, J., and STABILE, J.
J-S17022-22
MEMORANDUM BY LAZARUS, J.: FILED JULY 27, 2022
Marcos Rivera appeals1 from the order, entered in the Court of Common
Pleas of Philadelphia County, denying relief pursuant to the Post Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Upon careful review, we
affirm.
The charges in this case arise from numerous allegations of sexual abuse
lodged against Rivera with regard to three minor children. The two male
victims were friends of Rivera’s son. Rivera was an uncle by marriage of the
female victim, whom he abused for approximately ten years. The crimes
occurred in Rivera’s home on Hope Street in Philadelphia.
On October 13, 2017, a jury convicted Rivera of one count of rape of a
child, three counts of indecent assault, three counts of corruption of minors,
and three counts of unlawful contact with a minor. On March 19, 2018, the
trial court sentenced Rivera to an aggregate sentence of twenty-eight to fifty-
six years’ incarceration followed by twenty-one years’ reporting probation.
On March 20, 2018, Rivera filed a post-sentence motion for
reconsideration of sentence, which the trial court denied without a hearing on
April 9, 2018. On November 26, 2019, this Court affirmed Rivera’s judgment
of sentence. See Commonwealth v. Rivera, 224 A.3d 795 (Pa. Super.
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1 Rivera was charged in the trial court at three separate docket numbers.
Rivera has complied with the dictates of Commonwealth v. Walker, 185
A.3d 969 (Pa. 2018), by filing a separate notice of appeal for each docket
number. We have sua sponte consolidated Rivera’s appeals. See Order,
9/29/21. See also Pa.R.A.P. 513.
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2019) (Table). Rivera’s petition for allowance of appeal was denied by the
Supreme Court on July 7, 2020. See Commonwealth v. Rivera, 237 A.3d
380 (Pa. 2020) (Table).
On September 8, 2020, Rivera filed a timely pro se PCRA petition. The
PCRA court appointed counsel, who filed an amended petition on February 2,
2021. On May 21, 2021, the Commonwealth filed a motion to dismiss Rivera’s
petition without a hearing. On July 23, 2021, the PCRA court issued a notice
of its intention to dismiss Rivera’s petition without a hearing pursuant to
Pa.R.Crim.P. 907 and, on August 24, 2021, the court formally dismissed the
petition. Rivera filed timely notices of appeal, followed by a court-ordered
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
On appeal, Rivera raises the following claims for our review:
1. Whether the PCRA court erred in denying relief, without a
hearing, on Rivera’s claim that appellate counsel was ineffective
for failing to appeal the denial of Rivera’s motion to reconsider
sentence.
2. Whether the PCRA court erred in denying relief, without a
hearing, on Rivera’s claim that appellate counsel was ineffective
for failing to appeal the denial of Rivera’s motion for mistrial.
3. Whether the PCRA court erred in denying relief, without a
hearing, on Rivera’s claim that trial counsel was ineffective for
failing to file a post-sentence motion asserting that the verdict
was against the weight of the evidence.
Brief of Appellant, at 8 (reordered and rephrased for brevity and clarity).
We begin by noting that our review of a decision by a PCRA court is
limited to evaluating whether the PCRA court’s findings of fact are supported
by the record, and whether its conclusions of law are free from legal error.
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Commonwealth v. Medina, 92 A.3d 1210, 1214 (Pa. Super. 2014). We
view the factual findings of the PCRA court and the evidence of record in the
light most favorable to the prevailing party. Id. Credibility determinations
supported by the record are binding; however, our review of the court’s legal
conclusions is de novo. Id. at 1214-15.
Here, Rivera’s claims all involve the ineffectiveness of counsel. When
alleging such a claim, a petitioner bears the burden of disproving the
presumption that counsel was effective. Commonwealth v. Gonzales, 608
A.2d 528, 531 (Pa. Super. 1992). Counsel is presumed to have provided
effective assistance unless the petitioner proves that: (1) the underlying
legal claim is of arguable merit; (2) counsel’s action or inaction lacked an
objectively reasonable basis designed to effectuate the client’s interest; and
(3) petitioner was prejudiced such that there was a reasonable probability of
a different outcome if not for counsel’s errors. Commonwealth v. Jones,
951 A.2d 294, 302 (Pa. 2008). See Strickland v. Washington, 466 U.S.
668 (1984). Failure to satisfy any prong of the test will result in the failure of
the ineffectiveness claim. Commonwealth v. Fulton, 830 A.2d 567, 572
(Pa. 2003).
Additionally, a PCRA court need not conduct an evidentiary hearing
when there are no genuine issues of material fact, no relief is due, and a
hearing would serve no legitimate purpose. Commonwealth v. Hutchinson,
25 A.3d 277, 285 (Pa. 2011). To obtain reversal of a PCRA court’s dismissal
without a hearing, a petitioner must show “that he raised a genuine issue of
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material fact, which[,] if resolved in his favor, would have entitled him to
relief.” Commonwealth v. Hanible, 30 A.3d 426, 438 (Pa. 2011) (citation
and quotation marks omitted).
Rivera first alleges that appellate counsel was ineffective for failing to
appeal the denial of his motion to reconsider sentence. Specifically, Rivera
asserts that he would have been entitled to appellate relief where the trial
court abused its discretion by imposing a sentence that “substantially
exceeded the period of supervision contemplated by the sentencing
guidelines,” and did not consider Rivera’s rehabilitative needs and mitigating
circumstances. Brief for Appellant, at 21. Because the court did not abuse its
discretion in sentencing Rivera, his ineffectiveness claim is meritless.
Sentencing is a matter vested in the sound discretion of a sentencing
judge. Commonwealth v. Hill, 66 A.2d 365, 370 (Pa. Super. 2013). The
sentencing court is given broad discretion in determining whether a sentence
is manifestly excessive because the sentencing judge is in the “best position
to measure factors such as the nature of the crime, the defendant’s character
and the defendant’s display of remorse, defiance, or indifference.”
Commonwealth v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012). Thus, a
sentence will only be deemed an abuse of discretion where it is obviously
unreasonable or the record demonstrates that it was the result of partiality,
prejudice, bias, or ill-will. Commonwealth v. Clarke, 70 A.3d 1281, 1287
(Pa. Super. 2013). Where the trial court had the benefit of reviewing a pre-
sentence investigation report (“PSI”), we must
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presume that the sentencing judge was aware of relevant
information regarding the defendant’s character and weighed
those considerations along with mitigating statutory factors. A
[PSI] constitutes the record and speaks for itself. . . . Having been
fully informed by the [PSI], the sentencing court’s discretion
should not be disturbed. This is particularly true . . . in those
circumstances where it can be demonstrated that the judge had
any degree of awareness of the sentencing considerations, and
there we will presume also that the weighing process took place
in a meaningful fashion. It would be foolish, indeed, to take the
position that if a court is in possession of the facts, it will fail to
apply them to the case at hand.
Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992).
A guidelines sentence will only be reversed if the application of the
guidelines is unreasonable, meaning that it was imposed without express or
implicit consideration by the sentencing court of the general standards of 42
Pa.C.S.A. § 9721(b).2 To comply with these standards, a judge must consider
the protection of the public, the gravity of the offense, and the rehabilitative
needs of the defendant. Commonwealth v. Coulverson, 34 A.3d 135, 147
(Pa. Super. 2011).
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2 Section 9721(b) provides:
[T]he court shall follow the general principle that the sentence
imposed should call for a total confinement that is consistent with
[section 9725] and the protection of the public, the gravity of the
offense as it relates to the impact on the life of the victim and the
community, and the rehabilitative needs of the defendant. The
court shall also consider any guidelines for sentencing and
resentencing adopted by the Pennsylvania Commission on
Sentencing[.]
42 Pa.C.S.A. § 9721(b).
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Here, as the PCRA court notes in its opinion, Rivera was convicted of ten
discrete sex-based offenses against three minor victims, including rape of a
child, unlawful contact with a minor, corruption of minors, and indecent
assault of a person under thirteen. Prior to sentencing, the court “thoroughly
reviewed” a PSI. PCRA Court Opinion, 9/21/21, at 11. At sentencing, defense
counsel strenuously argued on Rivera’s behalf, emphasizing, inter alia, the
difficult circumstances of Rivera’s childhood, as well as Rivera’s own childhood
sexual abuse. Thus, the court was aware of, and considered, Rivera’s
mitigating circumstances and rehabilitative needs. Hallock, supra.
Nevertheless, the court appropriately concluded that Rivera’s actions
warranted “a significant term of imprisonment,” particularly in light of “the
age of each victim and [Rivera’s] relationship to each child,” all of whom
“trusted [him] as a caretaker, neighbor, and/or family member.” PCRA Court
Opinion, 9/21/21, at 12. Additionally, Rivera’s aggregate sentence of twenty-
eight to fifty-six years’ incarceration, followed by twenty-one years’ reporting
probation, falls squarely within the standard range of the sentencing
guidelines.
Moreover, Rivera’s argument that he received “functionally a life
sentence,” Brief of Appellant, at 2, in violation of the precepts of the
Sentencing Code, is meritless. As the PCRA court notes, the courts of this
Commonwealth have repeatedly upheld similar sentences in cases involving
multiple offenses and/or victims. See, e.g., Commonwealth v. Walls, 926
A.2d 957, 960 (Pa. 2007) (upholding sentence of 21-50 years’ incarceration
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for repeated rape and involuntary deviate sexual intercourse of seven-year-
old child where sentence based on defendant’s position of trust and
responsibility in caring for victim, tender age of victim, and familial
relationship of victim to defendant). The court’s determination that Rivera
was not entitled to “age-based leniency, ‘volume discounts,’ or ‘senior citizen
discounts’” was not an abuse of discretion of misapplication of the law. PCRA
Court Opinion, 9/21/21, at 13.
Rivera next claims that appellate counsel was ineffective for failing to
appeal the trial court’s denial of his motion for mistrial. The motion was raised
when, in the presence of the jury, a sheriff asked Rivera to stand to be
escorted into custody during a break in testimony:
The Court: We will take a short break. Do not discuss this case
with anyone else or conduct any independent research.
The Sheriff: Sir, please stand up.
The Court Crier: Um, no.
The Court: No, no.
The Court Crier: Please remain seated as the jurors leave the
room. (jurors exit).
Ms. Young: Your Honor, at this time I would move for a mistrial.
It happened on the brink of her asking my client to—I mean
there’s no way that they’re not going to be prejudiced by that.
There’s no way they don’t know what’s going on.
N.T. Trial, 10/4/17, at 31. Rivera’s motion for mistrial was based on defense
counsel’s belief that the incident indicated to the jury that Rivera was in
custody, thus prejudicing him in the eyes of the jurors. The trial court denied
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the motion, concluding that the jury could have interpreted the incident in
many different ways and the sheriff immediately desisted. The court offered
to issue a curative instruction, which counsel declined, fearing it would only
highlight the incident.
A mistrial is an extreme remedy, granted only when the relevant
incident “is of such a nature that its unavoidable effect is to deprive the
defendant of a fair trial by preventing the jury from weighing and rendering a
true verdict.” Commonwealth v. Wright, 961 A.2d 119, 142 (Pa. 2008).
The trial court’s decision to deny a mistrial is reviewed for an abuse of
discretion. Id.
With regard to the specific circumstances of this case, our courts have
held that jurors seeing a defendant in handcuffs is not inherently prejudicial
and does not necessarily contaminate the jury’s decision-making process,
making a mistrial improper. Commonwealth v. Lark, 543 A.2d 491, 501
(Pa. 1988). See also Commonwealth v. Young, 849 A.2d 1152, 1156 (Pa.
2004) (reference by witness to defendant’s police number not grounds for
mistrial).
Rivera argues that there is a reasonable likelihood that the jury would
not have convicted him if this incident had not occurred, and that appellate
counsel “[had] no reasonable basis for not appealing the denial [of] a mistrial
when the . . . prejudicial evidence was presented to the jury.” Brief of
Appellant, at 24. In response, the Commonwealth asserts that Rivera was not
denied his right to a fair and impartial trial because the sheriff’s brief action
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was not inherently prejudicial and Rivera “was never seen handcuffed and
never appeared in a prison uniform during trial.” Brief of Appellee, at 17.
We agree with the PCRA court that it properly denied Rivera’s motion
for a mistrial. Rivera has offered nothing more than bald assertions that the
interaction with the sheriff prejudiced him. Moreover, at the time of the
interaction between Rivera and the sheriff, Rivera was in civilian clothing and
was not confined to handcuffs. Additionally, he never stood completely
upright, nor was he forcibly positioned upright, and the judge was addressing
the jury at the time of the incident. As the Commonwealth emphasizes in its
brief, jurors are not accustomed to court proceedings and etiquette, and it is
routine for different parties to be asked to stand for various proceedings in a
court room. See id. at 17. Because Rivera cannot demonstrate that he was
prejudiced by the brief interaction with the sheriff, the PCRA court did not
abuse its discretion in concluding that appellate counsel was not ineffective
for failing to raise a meritless claim on direct appeal. See Jones, supra.
Finally, Rivera claims that trial counsel was ineffective for failing to file
a post-sentence motion challenging the weight of the evidence. Rivera claims
that the victims’ testimony was inconsistent with prior statements and with
physical evidence. For example, Rivera argues that, while S.C. reported that
Rivera had anally penetrated her from the age six onward, a “physical
examination of her body was normal and [showed] no signs of penetration.”
Brief of Appellant, at 25. He asserts that the testimony was so inconsistent
as to shock one’s sense of justice and, accordingly, trial counsel was
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ineffective for failing to file a post-sentence challenge to the weight of the
evidence. He is entitled to no relief.
Where the trial court has ruled on the weight claim below, an appellate
court’s role is not to consider the underlying question of whether the verdict
is against the weight of the evidence. Commonwealth v. Champey, 832
A.2d 403, 408 (Pa. 2003). Rather, appellate review is limited to whether the
trial court palpably abused its discretion in ruling on the weight claim. Id. An
abuse of discretion involves bias, prejudice, ill-will, manifest
unreasonableness, or a misapplication of the law. Commonwealth v. Hardy,
918 A.2d 766, 766 (Pa. Super. 2007).
For a new trial to be awarded based on a claim that the verdict was
against the weight of the evidence, the verdict must be so contrary to the
evidence that it shocks one’s sense of justice. Commonwealth v. Hunter,
554 A.2d 550, 555 (Pa. Super. 1989). As such, a mere conflict in testimony
does not entitle a defendant to a new trial. Commonwealth v. Widmer, 744
A.2d 745, 753 (Pa. 2000). Weighing evidence is a duty placed on the finder
of fact, who is free to believe all, part, or none of the evidence, and to
determine the credibility of witnesses. Commonwealth v. Small, 741 A.2d
666, 672 (Pa. 1999).
Here, the PCRA court—also the trial court in this matter—concluded that
it would have denied a post-sentence motion challenging the weight of the
evidence. The court noted that trial counsel thoroughly cross-examined each
victim, “specifically highlighting inconsistencies between their trial testimony
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and their testimony at prior hearings.” PCRA Court Opinion, 9/21/21, at 19.
The jury heard and weighed all the testimony and “resolved any
inconsistencies against [Rivera.]” Id. The PCRA court found that the
testimonial inconsistencies were “not of such great weight that disregarding
them caused a shocking miscarriage of justice.” Id.
Moreover, as to Rivera’s claim regarding S.C.’s normal physical
examination, the PCRA court noted that “the uncorroborated testimony of a
sexual assault victim, if believed by the trier of fact, is sufficient to convict a
defendant, despite contrary evidence from the witnesses.” Id. at 19-20,
quoting Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa. Super. 2006).
The court also cited the testimony of Maria McColgan, M.D., who testified on
behalf of the Commonwealth as an expert in the diagnosis and treatment of
physical and sexual abuse of children. Doctor McColgan performed a physical
examination of S.C. when S.C. was fifteen years old and did not find signs of
abuse. See N.T. Trial, 10/6/17, at 60-61. However, Dr. McColgan also
testified that “the vast majority of children . . . do not have definitive findings
that there was penetration or physical injury from physical abuse. . . . [T]he
vast majority of children have normal examinations. There’s no physical way
to tell if there was or wasn’t penetration.” Id. at 61. The court concluded
that the jury “considered Dr. McColgan’s testimony and determined that the
lack of physical corroborating evidence did not overcome the evidence of
[Rivera’s] guilt,” which the jury was “perfectly entitled” to do. PCRA Court
Opinion, 9/21/21, at 20.
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Upon our review of the record, we agree with the PCRA court that
Rivera’s underlying weight claim lacks merit. See Medina, supra. As trial
counsel cannot be deemed ineffective for failing to raise a meritless claim,
Rivera is entitled to no PCRA relief on this issue. See Jones, supra.
In sum, Rivera’s claims on appeal are all meritless and he has failed to
raise a genuine issue of material fact that would have entitled him to relief.
Accordingly, the PCRA court did not err or abuse its discretion in denying
Rivera relief without a hearing. Hanible, supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/27/2022
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