J-S44021-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PEDRO MORALES-JUSTINIANO :
:
Appellant : No. 2925 EDA 2022
Appeal from the Judgment of Sentence Entered September 30, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0005503-2021
BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY NICHOLS, J.: FILED MARCH 28, 2024
Appellant Pedro Morales-Justiniano appeals from the judgment of
sentence imposed following his convictions for indecent assault and related
offenses. Appellant challenges the sufficiency of the evidence, the weight of
the evidence, and the discretionary aspects of his sentence. We affirm.
We adopt the trial court’s summary of the facts underlying this case.
See Trial Ct. Op. at 2-5. Briefly, Appellant was arrested and charged with
multiple offenses at three separate docket numbers based on allegations that
he sexually assaulted three minor victims.1 All three cases proceeded to a
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 We note that although the three cases were consolidated for trial, Appellant
retained Mark W. Adams, Esq., to represent him in the instant case at Docket
No. 5503-2021 and a separate attorney, Scott Sigman, Esq. to represent him
for the charges at Docket Nos. 4875-2019 and 4876-2019. Appellant filed
(Footnote Continued Next Page)
J-S44021-23
consolidated jury trial in June of 2022. At trial, the Commonwealth presented
testimony from each of the three complainants. See N.T. Trial, 6/8/22, 34-
108; N.T. Trial, 6/9/22, 5-88, 90-147. The Commonwealth also presented
testimony from forensic interviewer Jillian Shainman, Special Victims Unit
(SVU) Detective Randy Moderes, and Kathy Lees, a victim/witness coordinator
who lived two houses away from the complainants. See N.T. Trial, 6/13/22,
at 6-23, 24-61, 62-88, 134-38. Appellant testified on his own behalf. See
N.T. Trial, 6/14/22, at 26-56. Additionally, Appellant presented testimony
from his sister, who stated that Appellant had a reputation for being a law-
abiding citizen. See id. at 58-61.
Ultimately, on June 15, 2022, Appellant was convicted of endangering
the welfare of children - parent/guardian/other (EWOC), corruption of minors,
indecent assault person less than 13 years of age, unlawful contact with a
minor - sexual offenses, and aggravated indecent assault of a child at Docket
No. 5503-2021.2,3
____________________________________________
separate appeals from the judgment of sentence imposed at Docket Nos.
4875-2019 and 4876-2019, which have been docketed by this Court at 2519
EDA 2022 and 2520 EDA 2022. We will address the appeals at 2519 EDA
2022 and 2520 EDA 2022 in a separate memorandum.
2 18 Pa.C.S. §§ 4304(a)(1), 6301(a)(1)(ii), 3126(a)(7), 6318(a)(1), and
3125(b), respectively.
3Appellant was also convicted of additional offenses at Docket Nos. 4875-
2019 and 4876-2019.
-2-
J-S44021-23
On September 30, 2022, the trial court imposed consecutive terms of
ten to twenty years’ incarceration and three years’ probation in each of the
three cases, resulting in a total aggregate sentence of thirty to sixty years’
incarceration, followed by nine years’ probation.4 Appellant was also
designated as a sexually violent predator (SVP) and ordered to comply with
lifetime registration under the Sex Offender Registration and Notification Act5
(SORNA). Appellant filed a post-sentence motion, which the trial court denied.
Appellant subsequently filed a timely notice of appeal and a court-
ordered Pa.R.A.P. 1925(b) statement. The trial court issued a Rule 1925(a)
opinion addressing Appellant’s claims.6
On appeal, Appellant raises the following issues for review:
____________________________________________
4 In the instant case, at Docket No. 5503-2021, the trial court sentenced
Appellant to consecutive terms of incarceration as follows: five to ten years
for unlawful contact with a minor and five to ten years for aggravated indecent
assault of a child. The trial court also imposed the following terms of
incarceration, all of which run concurrent to Appellant’s sentence for unlawful
contact with a minor: three and a half to seven years for EWOC, three and a
half to seven years for corruption of minors, and three and a half to seven
years for indecent assault – person less than thirteen. Lastly, the trial court
imposed a consecutive term of three years of probation for aggravated
indecent assault of a child. All of Appellant’s individual sentences at Docket
No. 5503-2021 were within the standard guideline range.
5 See 42 Pa.C.S. §§ 9799.10-9799.42.
6 As noted previously, Appellant retained separate counsel for the appeals at
Docket Nos. 4875-2019 and 4876-2019, which are not part of the instant
appeal. However, because all three cases were consolidated for trial, the trial
court’s Rule 1925(a) opinion addresses the underlying facts and claims in all
three cases simultaneously.
-3-
J-S44021-23
1. Whether there was insufficient evidence to find that [A]ppellant
committed the crimes of [EWOC] (F3), corruption of minors
(F3), indecent assault of a person less than 13 (F3), unlawful
contact with a minor (F1), and aggravated indecent assault of
a child (F1).
2. Did the trial court abuse its discretion by refusing to grant a
new trial, as the verdicts were against the weight of the
evidence?
3. Whether the trial court abused its discretion by entering
manifestly excessive and clearly unreasonable sentences and
where the sentences violated the sentencing guidelines?
4. Whether the trial court’s aggregate sentence of 30 years to 60
years’ incarceration followed by 9 years’ probation was
unreasonable, excessive, and violated the sentencing
guidelines?
Appellant’s Brief at 8.
Sufficiency of the Evidence
In his first claim, Appellant challenges the sufficiency of the evidence
supporting his convictions at Docket No. 5503-2021. Id. at 24-27. In
support, Appellant argues that (1) he has good character and that “good
character alone may be sufficient to raise a reasonable doubt and thus justify
an acquittal of the charges;” (2) the complainant failed to report the abuse
when it occurred; (3) the complainant and her two sisters had “different
recollections and/or testimony of key events;” and (4) there was no DNA or
physical evidence to support the convictions. Id.
In reviewing a challenge to the sufficiency of the evidence, our standard
of review is as follows:
Because a determination of evidentiary sufficiency presents a
question of law, our standard of review is de novo and our scope
-4-
J-S44021-23
of review is plenary. In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
to prove every element of the offense beyond a reasonable doubt.
[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. Moreover, as an appellate court, we may not re-weigh
the evidence and substitute our judgment for that of the fact-
finder.
Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (citation
omitted).
Additionally, our Supreme Court has held that a “challenge to the
sufficiency of the evidence must fail[,]” where an appellant phrases an issue
as a challenge to the sufficiency of the evidence, but makes an argument that
goes to the weight of the evidence. Commonwealth v. Small, 741 A.2d
666, 672 (Pa. 1999). As this Court has explained, “[a] challenge to the weight
of the evidence is distinct from a challenge to the sufficiency of the evidence
in that the former concedes that the Commonwealth has produced sufficient
evidence of each element of the crime, but questions which evidence is to be
believed.” Commonwealth v. Richard, 150 A.3d 504, 516 (Pa. Super.
2016) (citation omitted) (formatting altered).
Challenges to reliability of evidence go to the weight of the evidence,
not sufficiency. See, e.g., Commonwealth v. Barkman, 295 A.3d 721, 733
(Pa. Super. 2023) (noting that unlike weight claim, “a sufficiency claim must
-5-
J-S44021-23
accept the credibility and reliability of all evidence that supports the verdict”
(citation omitted)). Indeed, the “[e]xistence of inconsistencies in the
testimony of a witness does not alone render evidence insufficient to support
a verdict.” Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa. Super. 2003)
(citations omitted); see also Commonwealth v. Johnson, 180 A.3d 474,
478 (Pa. Super. 2018) (reiterating that “[v]ariances in testimony . . . go to
the credibility of the witnesses and not the sufficiency of the evidence”
(citation omitted)).
Here, Appellant does not allege that the Commonwealth failed to
establish any particular element of the charges for which he was convicted. 7
Instead, Appellant challenges the quality of the complainant’s testimony in
light of inconsistencies with other witness testimony, the lack of DNA
evidence, and Appellant’s reputation for good character. See Appellant’s Brief
at 24-27. Because these claims relate to the weight of the evidence, rather
____________________________________________
7 In any event, even if Appellant properly argued a sufficiency-of-the-evidence
claim, we would conclude that it was waived due to the deficiencies in
Appellant’s brief. Although Appellant filed a Rule 1925(b) statement
challenging the sufficiency of the evidence for each of his underlying
convictions at Docket No. 5503-2021, see Rule 1925(b) Statement, 11/23/22,
at 1-2, Appellant did not identify which element or elements for which the
evidence was insufficient. This Court has explained that in order to “preserve
a sufficiency claim, [an appellant’s] Rule 1925(b) statement must specify the
element or elements upon which the evidence was insufficient.”
Commonwealth v. Widger, 237 A.3d 1151, 1156 (Pa. Super. 2020) (citation
omitted). If an appellant does not specify such elements, the sufficiency claim
is waived. See Commonwealth v. Roche, 153 A.3d 1063, 1072 (Pa. Super.
2017).
-6-
J-S44021-23
than sufficiency, Appellant’s sufficiency claim must fail. See Small, 741 A.2d
at 672. Therefore, he is not entitled to relief.
Weight of the Evidence
Appellant also argues that the trial court erred in rejecting his weight
claim. Appellant’s Brief at 27. In support, Appellant argues that the evidence
was “weak and inconclusive” because (1) Appellant had good character; (2)
the complainant (A.L.) failed to report the alleged abuse “contemporaneously
or immediately” after it occurred; (3) A.L.’s testimony was inconsistent with
the testimony provided by her sisters; and (4) there was “no DNA and no
medical/forensic evidence” to support Appellant’s convictions. Id. at 28-31.
When reviewing the denial of a motion for a new trial based on weight
of the evidence, we are governed by the following standard of review:
A motion for a new trial based on a claim that the verdict is against
the weight of the evidence is addressed to the discretion of the
trial court. A new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same facts
would have arrived at a different conclusion. Rather, the role of
the trial judge is to determine that notwithstanding all the facts,
certain facts are so clearly of greater weight that to ignore them
or to give them equal weight with all the facts is to deny justice.
An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court. Appellate review of a weight claim is a
review of the exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the evidence.
Commonwealth v. Windslowe, 158 A.3d 698, 712 (Pa. Super. 2017)
(citations omitted).
As this Court has repeatedly stated,
-7-
J-S44021-23
[t]he weight of the evidence is exclusively for the finder of fact,
who is free to believe all, none, or some of the evidence and to
determine the credibility of the witnesses. Resolving contradictory
testimony and questions of credibility are matters for the finder of
fact. It is well-settled that we cannot substitute our judgment for
that of the trier of fact.
* * *
Because the trial judge has had the opportunity to hear and see
the evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination that the verdict
is against the weight of the evidence. One of the least assailable
reasons for granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against the weight of
the evidence and that a new trial should be granted in the interest
of justice.
Furthermore, in 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.
Commonwealth v. Spence, 290 A.3d 301, 311 (Pa. Super. 2023) (citations
omitted and formatting altered); see also Commonwealth v. Jacoby, 170
A.3d 1065, 1081 (Pa. 2017) (stating that “inconsistencies in eyewitness
testimony are not sufficient to warrant a new trial on grounds that the verdict
was against the weight of the evidence” (citation omitted)).
Here, the trial court addressed Appellant’s weight claim as follows:
Based on the facts already mentioned in this opinion, as well as
the totality of the circumstances relating to Appellant’s character
and the complainants’ testimony, the jury verdicts were in no way
against the weight of the evidence presented. Specifically, the
evidence was not vague, tenuous, or uncertain, nor did it rise to
the level of shocking one’s sense of justice. Reviewing video
testimony of each complainant as well as witnessing their overall
calloused, withdrawn, and emotional demeanors, the jury was
convinced, beyond a reasonable doubt, that each complainant
-8-
J-S44021-23
suffered immeasurable trauma because of Appellant. Therefore,
the guilty verdicts were not against the weight of the evidence
admitted at trial.
Trial Ct. Op. at 17-18 (citation omitted and some formatting altered).
Following our review of the record, we find no abuse of discretion by the
trial court in rejecting Appellant’s weight claim. See Jacoby, 170 A.3d at
1080-81; see also Windslowe, 158 A.3d at 712. The record reflects that
the evidence amply supports the jury’s verdict, and the trial court concluded
that there was nothing shocking in the jury reaching its decision. See Trial
Ct. Op., at 17-18; see also Spence, 290 A.3d at 311. It was within the jury’s
province to assess witness testimony, make credibility determinations, and
reach a verdict based on the evidence presented at trial. See Spence, 290
A.3d at 311. Further, this Court cannot re-weigh the evidence on appeal. See
id. Therefore, Appellant is not entitled to relief.
Discretionary Aspects of Sentence
Appellant’s remaining claims relate to the discretionary aspects of his
sentence. Specifically, Appellant argues that “[t]he trial court abused its
discretion by entering manifestly excessive and clearly unreasonable
sentences for each of Appellant’s five convictions.” Appellant’s Brief at 32. In
support, Appellant argues that the trial court “overly focused on the crime,
while completely ignoring the sentencing guidelines, Appellant’s individual
characteristics, and the circumstances of the case.” Id. at 33. Appellant also
argues that his aggregate sentence was unreasonable and excessive because
the trial court ignored mitigating factors. Id. at 37. Therefore, Appellant
-9-
J-S44021-23
concludes that his “sentence should be vacated and remanded for re-
sentencing.” Id. at 33.
“[C]hallenges to the discretionary aspects of sentencing do not entitle
an appellant to review as of right.” Commonwealth v. Derry, 150 A.3d 987,
991 (Pa. Super. 2016) (citations omitted). Before reaching the merits of such
claims, we must determine:
(1) whether the appeal is timely; (2) whether Appellant preserved
his issues; (3) whether Appellant’s brief includes a [Pa.R.A.P.
2119(f)] concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of
sentence; and (4) whether the concise statement raises a
substantial question that the sentence is inappropriate under the
sentencing code.
Commonwealth v. Corley, 31 A.3d 293, 296 (Pa. Super. 2011) (citations
omitted).
“To preserve an attack on the discretionary aspects of sentence, an
appellant must raise his issues at sentencing or in a post-sentence motion.
Issues not presented to the sentencing court are waived and cannot be raised
for the first time on appeal.” Commonwealth v. Malovich, 903 A.2d 1247,
1251 (Pa. Super. 2006) (citations omitted); see also Pa.R.A.P. 302(a)
(stating that “[i]ssues not raised in the trial court are waived and cannot be
raised for the first time on appeal”).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Battles, 169 A.3d
1086, 1090 (Pa. Super. 2017) (citation omitted). “A substantial question
- 10 -
J-S44021-23
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. Grays, 167 A.3d
793, 816 (Pa. Super. 2017) (citation omitted).
Here, the record reflects that Appellant preserved this issue by raising
it in his post-sentence motion, filing a timely notice of appeal and a court-
ordered Rule 1925(b) statement, and including a Rule 2119(f) statement in
his brief. See Corley, 31 A.3d at 296. Further, Appellant’s claim raises a
substantial question for our review. See Commonwealth v. Raven, 97 A.3d
1244, 1253 (Pa. Super. 2014) (stating “an excessive sentence claim—in
conjunction with an assertion that the court failed to consider mitigating
factors—raises a substantial question” (citation omitted)). Therefore, we will
review the merits of Appellant’s claims.
Our well-settled standard of review is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
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.
Additionally, our review of the discretionary aspects of a sentence
is confined by the statutory mandates of 42 Pa.C.S. § 9781(c) and
(d). Subsection 9781(c) provides:
The appellate court shall vacate the sentence and remand
the case to the sentencing court with instructions if it finds:
- 11 -
J-S44021-23
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines
erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly
unreasonable; or
(3) the sentencing court sentenced outside the
sentencing guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the
sentence imposed by the sentencing court.
42 Pa.C.S. § 9781(c).
In reviewing the record, we consider:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation [(PSI)].
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
Raven, 97 A.3d at 1253-54 (citation omitted).
“When imposing a sentence, the sentencing court must consider the
factors set out in 42 Pa.C.S. § 9721(b), [including] the protection of the public,
[the] gravity of offense in relation to impact on [the] victim and community,
and [the] rehabilitative needs of the defendant[.]” Commonwealth v.
Fullin, 892 A.2d 843, 847 (Pa. Super. 2006) (citation omitted and formatting
altered). “A sentencing court need not undertake a lengthy discourse for its
reasons for imposing a sentence or specifically reference the statute in
- 12 -
J-S44021-23
question, but the record as a whole must reflect the sentencing court’s
consideration of the facts of the crime and character of the offender.”
Commonwealth v. Schutzues, 54 A.3d 86, 99 (Pa. Super. 2012) (citations
omitted).
Additionally, the trial court “must consider the sentencing guidelines.”
Fullin, 892 A.2d at 848 (citation omitted). However, “where the trial court is
informed by a PSI [report], it is presumed that the court is aware of all
appropriate sentencing factors and considerations, and that where the court
has been so informed, its discretion should not be disturbed.”
Commonwealth v. Edwards, 194 A.3d 625, 638 (Pa. Super. 2018) (citation
omitted and formatting altered).
The balancing of the sentencing factors is the sole province of the
sentencing court, which has the opportunity to observe the defendant and all
witnesses firsthand. See Commonwealth v. Kurtz, 294 A.3d 509, 536 (Pa.
Super. 2023), appeal granted on other grounds, 306 A.3d 1287 (Pa. 2023).
In conducting appellate review, this Court “cannot reweigh sentencing factors
and impose judgment in place of sentencing court where lower court was fully
aware of all mitigating factors[.]” Id. (citation omitted).
“Generally, Pennsylvania law affords the sentencing court discretion to
impose its sentence concurrently or consecutively to other sentences being
imposed at the same time or to sentences already imposed. [An a]ppellant is
not entitled to a ‘volume discount’ on his multiple convictions by the imposition
- 13 -
J-S44021-23
of concurrent sentences.” Commonwealth v. Brown, 249 A.3d 1206, 1216
(Pa. Super. 2021) (citations omitted and formatting altered).
Here, the record reflects that the trial court ordered a PSI report, which
it reviewed prior to sentencing. See N.T. Sentencing Hr’g, 9/30/22, at 3-4,
56. In its Rule 1925(a) opinion, the trial court explained:
In this case, the court sentenced Appellant to [an aggregate of]
10-20 years[’] incarceration [and 3 years of probation] for each
complainant. Further, the court ordered that these sentences run
consecutively for a total aggregate sentence of 30-60 years[’]
incarceration [followed by 9 years of probation]. While the
sentences may be lengthy, they are within the recommended
guidelines. The court carefully considered both the mitigating and
aggravating factors presented in formulating an appropriate
sentence for Appellant. . . .
* * *
The court was reasonable in sentencing Appellant to consecutive
terms of incarceration as the court considered all factors pertinent
to Appellant. The court reasonably weighed prior record score and
adversities he faced regarding his sexual identity, as well as all his
rehabilitative needs.
However, based on the severity of his offenses, the length of time
the incidents occurred, the tender ages of the complainants and
Appellant’s classification, Appellant’s sentences were well within
the guidelines. Quite frankly, the court still has serious concerns
as to whether Appellant will reoffend if and when released to the
public. These concerns stem from Appellant’s predatory behavior
and grooming involving the complainants. While Appellant cited
his sexual status as a mitigating factor, the court was not
convinced that the growing pains that come with understanding
one’s sexual identity could be the basis for a valid defense under
these circumstances.
Lastly, the court was especially moved by the testimony of each
complainant, both at trial and at sentencing. It is clear that each
victim has undergone significant emotional distress from
Appellant’s actions and understands that trauma is shown
differently amongst each individual. Thus, the court found that
- 14 -
J-S44021-23
any mitigating factor was overwhelmed by the significant
aggravating factors associated with Appellant’s offenses. This
court felt his sentences should be served consecutively to reflect
the harm done to each complainant separately.
Trial Ct. Op. at 19-21.
Based on our review of the record, we discern no abuse of discretion by
the trial court. See Raven, 97 A.3d at 1253. The record reflects that the
trial court ordered a PSI report, which it reviewed prior to sentencing. See
N.T. Sentencing Hr’g, 9/30/22, at 3-4, 56. Therefore, we presume that the
trial court was aware of the mitigating factors and considered them when
imposing Appellant’s sentence. See Edwards, 194 A.3d at 638; see also
Kurtz, 294 A.3d at 536. Further, we will not re-weigh those factors on appeal.
See Commonwealth v. Macias, 968 A.2d 773, 778 (Pa. Super. 2009)
(explaining that the appellate court cannot reweigh sentencing factors and
impose its judgment in place of sentencing court where lower court was fully
aware of all mitigating factors). Further, to the extent Appellant challenges
his aggregate sentence, we reiterate that defendants convicted of multiple
criminal offenses are not entitled to a “volume discount” on their aggregate
sentence. See Brown, 249 A.3d at 1216. Under these circumstances, we
have no basis to conclude that the trial court abused its discretion in imposing
Appellant’s sentence. See Edwards, 194 A.3d at 637; Raven, 97 A.3d at
1253. Therefore, Appellant is not entitled to relief.
Judgment of sentence affirmed. Jurisdiction relinquished.
- 15 -
J-S44021-23
Date: 3/28/2024
- 16 -