J-S44007-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HECTOR G. GONZALES,
Appellant No. 3690 EDA 2015
Appeal from the Judgment of Sentence Entered July 31, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013380-2013
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HECTOR G. GONZALES,
Appellant No. 3691 EDA 2015
Appeal from the Judgment of Sentence Entered July 31, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013381-2013
BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 21, 2017
Appellant, Hector G. Gonzales, appeals from the judgment of sentence
of an aggregate term of 21 to 42 years’ incarceration, imposed after he was
convicted, in two separate cases, of various crimes including attempted rape
J-S44007-17
by forcible compulsion and unlawful restraint.1 Appellant challenges the
discretionary aspects of his sentence, as well as the sufficiency and weight of
the evidence to sustain his convictions. After careful review, we find no
merit to those claims. However, we sua sponte determine that the portion
of the court’s July 31, 2015 sentencing order that deems Appellant a
Sexually Violent Predator (SVP) under the Sexual Offender Registration and
Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10-9799.41, is illegal.
Therefore, we vacate in part, affirm in part, and remand for further
proceedings.
The trial court summarized the facts of Appellant’s case, as follows:
At trial, the Commonwealth of Pennsylvania established
that [Appellant] initially accosted two females, [C.Q.] and
[M.R.], who were strangers to him, as they walked through a
park near 3rd & Cumberland Streets in Philadelphia on July 1,
2013, around 11 p.m.2 Specifically, [C.Q.] testified that she
received a phone call earlier from her friend [M.R.] asking to
meet for a night out at a local pub. [M.R.] stopped at [C.Q.’s]
house and waited downstairs. [C.Q.] further testified that she
witnessed [M.R.] ingest two Xanax pills, which were prescribed
to her. These two friends walked to a bar in the neighborhood,
where they each drank a shot and a beer. When these two
females later passed the bar, a male on a bike approached them
along North Fourth Street. [C.Q.] unequivocally identified this
male in the courtroom as [Appellant]. She explained that
[Appellant] kept following them as they walked through the
____________________________________________
1
On December 28, 2015, this Court issued a per curiam order that sua
sponte consolidated Appellant’s appeals in each of his two cases.
2
To protect the privacy of the victims in this case, we have changed their
names to initials.
-2-
J-S44007-17
park. He offered a cigarette, to which [C.Q.] quickly replied[,]
“no, and get away.”
[C.Q.] testified [that Appellant] stated that he was “trying
to have fun,” and repeatedly suggested that he and they engage
in a “threesome,” and made repeated foul mouthed sexual
requests. [Appellant] ignored the women’s entreaties to leave
them alone and their clear statements that they were not
interested in his crude sexual advances. [C.Q.] informed him
that they were not interested in the attention of any males.
[Appellant] then became aggressive with her friend, [M.R.], and
began touching her on her hands and breast.
[Appellant] continued to badger both women, “talking
dirty,” and stating that he wanted to have a three-way orgy.
[Appellant] walked up to [C.Q.], grabbed her shoulder, [and] felt
her breast. She immediately pushed him away. [C.Q.] stated to
leave [M.R.] alone because she was messed up because of the
Xanax and alcohol. She clearly voiced to him that he should
leave the area entirely and go to where the prostitutes were
available. [C.Q.] started walking away, towards the bar, to alert
her friends to help them. When [C.Q.] returned with her friends,
she witnessed [Appellant], with his pants down, pounding [his
body] on top of [M.R.] as she lay on the ground struggling and
yelling to fend him off of her. [C.Q.] and her two friends “O” and
“Black” started pulling [Appellant] off of [M.R.]; [Appellant’s]
underwear was down to his ankles. [M.R.’s] pants had been
pulled down her legs and her underwear [was] ripped. She was
hysterical.
[M.R.’s] testimony at trial strongly corroborated her
friend’s recollection of events that evening. [M.R.] testified that
when [C.Q.] walked away to meet their friends, [Appellant]
jumped on top of her and pulled [her] to the ground in a park
area. She testified that [Appellant] pulled out his penis, and
attempted to insert his penis in her mouth and tried to go in her
pants. [M.R.] testified that she had a few drinks that night, as
well as her prescribed Xanax, and had subsequent difficulties
with her memory, but that those circumstances did not prohibit
her from recalling material facts as she recalled events of that
night.
[M.R.] also testified that [Appellant], while his hands were
in her pants, ripped her underwear and pulled them down to her
ankles. She clearly recalled flailing her arms to try to stop him
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and yelling. When her friends returned they pulled [Appellant]
off of her as she struggled on the ground. [Appellant] ran down
an alley way [sic] naked, with [C.Q.] friends in hot pursuit.
When [Appellant] entered a house, multiple people called police
reporting a naked man sitting on the steps of a home in the
2600 block of Orianna Street.
Philadelphia Police Officer Jason Judge credibly testified to
responding to a radio call that dispatched him to the area of 3rd
and Cumberland Streets in Philadelphia. Upon arrival[,] he was
approached by two upset women who had excitedly reported
that [Appellant] approached them and attempted to sexually
assault them after [they had] rebuffed … his unwanted
advances. They and other person[s] directed the responding
officers toward the 2600 block of Orianna Street as the path of
[Appellant’s] flight.
Police Officer Judge testified that the complainant, [M.R.],
told him that a male, who was a complete stranger to her[,]
sexually assaulted her by attempting to penetrate her vagina,
and that she had tried to fight him. She told him that the male
then attempted to place his penis in her mouth. Officer Judge
further testified that [M.R.’s] clothes were disheveled, ripped and
torn, and that she appeared to be visibly distraught.
Philadelphia Police Officer Cyprian Scott, of the
Philadelphia Police SWAT Team, testified that he and his team
were called to a report of a male barricaded inside 2628 North
Orianna Street, Philadelphia, PA[], which was located a block
and one-half from the reported sexual assault location. Officer
Scott further testified that upon arriving at the house, he was
informed that the male inside had been chased by citizens after
committing a sexual assault. The male inside, later identified as
[Appellant], rebuffed requests by SWAT members to peaceably
exit the property for three hours before the SWAT team made
forcible entry into the property. Officer Scott stated that orders
were given to break through the front door.
Once inside the residential property, officers cleared the
first floor and heard [Appellant] moving upstairs in a second
floor bedroom. [Appellant] yelled to the officers that he would …
come down the stairs as long as his dog was unharmed. Per
direction, [Appellant] placed the pit bull terrier into a second
floor bedroom where [the dog] remained unharmed. [Appellant]
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was finally subdued and arrested after positive identifications
were made from the victims.
Trial Court Opinion (TCO), 11/16/16, at 4-7 (citations to the record
omitted).
Appellant was charged with various offenses stemming from the
above-stated facts, and he proceeded to a jury trial in March of 2015. On
March 19, 2015, the jury convicted him of attempted rape by forcible
compulsion, 18 Pa.C.S. §§ 901, 3121(a)(1); attempted involuntary deviate
sexual intercourse by forcible compulsion, 18 Pa.C.S. §§ 901, 3123(a)(1);
unlawful restraint - serious bodily injury, 18 Pa.C.S. § 2902(a)(1); indecent
exposure, 18 Pa.C.S. § 3127(a); and indecent assault by forcible
compulsion, 18 Pa.C.S. § 3126(a)(2). Following the preparation of a
presentence report and mental health evaluation, a combined sentencing
and sexually violent predator (SVP) hearing was conducted on July 31, 2015.
At the conclusion thereof, the court imposed an aggregate sentence of 21 to
42 years’ incarceration, and determined that Appellant is an SVP.
Appellant filed a timely post-sentence motion which was denied on
December 4, 2015. Appellant then filed a timely notice of appeal, and also
timely complied with the trial court’s order to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. Herein, Appellant
presents three issues for our review:
I. Whether [Appellant’s] sentence was manifestly excessive[?]
II. Whether the evidence was sufficient as a matter of law to
convict [Appellant] of criminal attempt - rape by forcible
compulsion…[?]
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III. Whether the verdict was against the weight of the
evidence[?]
Appellant’s Brief at 8.
Appellant’s first issue is a challenge to the discretionary aspects of his
sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must
invoke this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (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. Evans, 901 A.2d 528, 533 (Pa. Super.
2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006).
Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing hearing
or in a motion to modify the sentence imposed.
Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super.
2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
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.” Sierra, supra at 912–13.
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
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Here, Appellant filed a timely notice of appeal, he preserved his
sentencing challenge in a post-sentence motion, and he has presented a
Rule 2119(f) statement in his appellate brief. Thus, we must determine if he
has raised a substantial question for our review. In his Rule 2119(f)
statement, Appellant argues that,
[t]he aggregate sentence of twenty-one (21) to forty-two (42)
years of imprisonment imposed by the sentencing judge is
manifestly excessive. The sentence is manifestly excessive[]
because it constitutes too severe a punishment and is grossly
disproportionate to the crimes, particularly in light of the facts
surrounding the criminal episode. Moreover, the sentencing
judge did not expressly or implicitly consider the general
standards applicable to sentencing found in 42 Pa.C.S. § 9721,
i.e., the protection of the public; the gravity of the offense in
relation to the impact on the victim and the community; and the
rehabilitative needs of [Appellant]. Based on the forgoing,
[Appellant’s] sentence is “clearly unreasonable.”
Appellant’s Brief at 15 (internal citations omitted).
While Appellant presents relatively boilerplate claims in his Rule
2119(f) statement, we will nevertheless consider his assertions as
constituting substantial questions for our review. See Commonwealth v.
Derry, 150 A.3d 987, 992 (Pa. Super. 2016) (“An averment that ‘the trial
court failed to consider relevant sentencing criteria, including the protection
of the public, the gravity of the underlying offense and the rehabilitative
needs of [the a]ppellant, as 42 Pa.C.S.[] § 9721(b) requires[,]’ presents a
substantial question for our review in typical cases.”) (citations omitted);
Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006)
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(“[C]laims that a penalty is excessive and/or disproportionate to the offense
can raise substantial questions.”).
However, we conclude that Appellant’s substantive arguments are
meritless. Essentially, he claims that the court focused on only his criminal
history and the gravity of his offenses, and ignored other factors such as his
learning disability, low I.Q., and rehabilitative needs. According to
Appellant, the court did not impose an individualized sentence, and the
aggregate term fashioned by the court was “clearly unreasonable.”
Appellant’s Brief at 18.3
In rejecting Appellant’s sentencing challenge, the trial court initially
concluded that he had failed to present a substantial question for our review.
For the reasons stated supra, we disagree. However, the court went on to
provide an alternative analysis of the merits of Appellant’s claims, finding his
arguments unpersuasive. See TCO at 10-17. Having reviewed the court’s
thorough and well-reasoned analysis in this regard, we conclude that it
adequately addresses the arguments Appellant presents on appeal.
Accordingly, we adopt that portion of the trial court’s assessment of
Appellant’s sentencing claim as our own, see id., and we deem his first
issue meritless for the reasons set forth therein.
____________________________________________
3
Appellant also avers that the court failed to state adequate reasons for the
sentence it imposed. However, we will not review this claim, as it was not
presented in Appellant’s Rule 2119(f) statement.
-8-
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Likewise, the trial court provides an accurate analysis of Appellant’s
remaining two issues, in which he challenges the sufficiency and weight of
the evidence to sustain his convictions. See id. at 17-20. We conclude that
the court’s discussion disposes of the arguments Appellant raises herein.4
Therefore, we also adopt that portion of the trial court’s decision as our own,
and reject Appellant’s second and third issues on the grounds set forth
therein.
However, we are compelled to sua sponte vacate an illegal aspect of
Appellant’s sentence, namely, the portion of the sentencing order deeming
him an SVP. See Commonwealth v. Butler, No. 1225 WDA 2016, *6 (Pa.
Super. filed Oct. 31, 2017) (concluding that the issue discussed, infra,
____________________________________________
4
However, we add a brief note to the trial court’s analysis of Appellant’s
challenge to the sufficiency of the evidence to support his conviction of
attempted rape. In his brief to this Court, Appellant focuses his sufficiency
argument on contending that “[t]here was no testimony that [his] penis was
ever near [the victim’s] vagina.” Appellant’s Brief at 20. However, C.Q.
testified that when she saw Appellant on top of M.R., “it looked like he was
trying to put his penis inside her vagina.” N.T. Trial, 3/18/15, at 46. C.Q.
also testified that M.R. was on her back with Appellant on top of her, and his
pants and underwear were down to his ankles. Id. M.R.’s pants were down
to her knees and her underwear was ripped. Id. While Appellant
acknowledges C.Q.’s testimony, he claims it was insufficient to support his
rape conviction because the victim, M.R., did not herself testify that
Appellant “was trying to force his penis inside of her.” Appellant’s Brief at
21. We disagree. C.Q.’s eyewitness account of the incident was adequate
for the factfinder to conclude, beyond a reasonable doubt, that Appellant
was attempting to force his penis into the victim’s vagina while he was
naked on top her. Moreover, any difference between C.Q.’s testimony and
M.R.’s goes to the weight of the evidence, not the sufficiency. Therefore,
Appellant’s argument in this regard is meritless.
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implicates the legality of a defendant’s sentence). In Commonwealth v.
Muniz, 164 A.3d 1189 (Pa. 2017), our Supreme Court held that the
registration requirements under SORNA constitute criminal punishment, thus
overturning prior decisions deeming those registration requirements civil in
nature. Id. at 1218. On October 31, 2017, this Court ruled that,
since our Supreme Court has held [in Muniz] that SORNA
registration requirements are punitive or a criminal penalty to
which individuals are exposed, then under Apprendi [v. New
Jersey, 530 U.S. 466 (2000),] and Alleyne [v. United States,
133 S.Ct. 2151, 2163 (2013)], a factual finding, such as whether
a defendant has a “mental abnormality or personality disorder
that makes [him or her] likely to engage in predatory sexually
violent offenses[,]” 42 Pa.C.S.[] § 9799.12, that increases the
length of registration must be found beyond a reasonable doubt
by the chosen fact-finder. Section 9799.24(e)(3) identifies the
trial court as the finder of fact in all instances and specifies clear
and convincing evidence as the burden of proof required to
designate a convicted defendant as an SVP. Such a statutory
scheme in the criminal context cannot withstand constitutional
scrutiny.
Butler, No. 1225 WDA 2016, at *11. Accordingly, the Butler panel held
that 42 Pa.C.S. § 9799.24(e)(3) is unconstitutional. Id. at *11-12.
In light of Butler, we are compelled to conclude that the portion of
Appellant’s sentencing order deeming him an SVP is illegal. See id. at *12.
Accordingly, we vacate only that aspect of Appellant’s judgment of sentence,
and remand his case for the trial court to determine under what tier of
SORNA Appellant must register, and to provide him with the appropriate
notice of his registration obligations under 42 Pa.C.S. § 9799.23. See id. at
*13.
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SVP Order reversed. Judgment of sentence affirmed in all other
respects. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2017
- 11 -
Circulated 11/02/2017 02:14 PM
ALE.
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY Nov 1 6 2016
FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
CRIMINAL TRIAL DIVISION Cal Appeals Unit
First Judicial District
of P
COMMONWEALTH OF PENNSYLVANIA ) PHILADELPHIA COUNTY
COURT OF COMMON PLEAS
))
VS.
) NO. CP-51-CR-0013380-2013
) NO. CP-51-CR-0013381-2013
HECTOR GONZALES )
) CP-51-CR-0013360-2013
Comm v Gonzales,
Hector G.
) 01:rron
1111111,11,161,111,16111111,111
OPINION
Appellant, Hector Gonzales, as the above -named Defendant, seeks review of the Order and
Judgment of Sentence, imposed on July 31, 2015, by the Honorable Anne Marie B. Coyle, Judge
of the First Judicial District Court of Common Pleas, The Appellant asserts within the combined
Statements of Matters Complained of on Appeal Pursuant to Pa. R. P. 1925(b) filed in both above -
captioned matters that:
1) in its imposition of consecutive sentences, the Trial Court did not properly
consider the general sentencing guidelines provided by the legislature of
Pennsylvania; (2) The Trial Court sentenced the Defendant based solely on the
seriousness of the offenses and failed to considered all relevant factors; (3) The
sentence imposed is not consistent with the gravity of the offense as it relates to the
impact on the life of the victim and the community, as well as the Defendant's
rehabilitative needs; (4) the sentence is manifestly excessive in that it is grossly
proportionate to his crime, particularly in light of the facts surrounding the criminal
episode and his background; (5) the judge failed to provide adequate reasons on the
record for the sentence; (6) the verdict was against the weight of the evidence; (7)
the evidence was insufficient as a matter of law to convict the Defendant of
Criminal Attempt- Rape Forcible Compulsion; and (8) the Trial Court failed to
sustain or overrule two objections.
PROCEDURAL HISTORY
The Defendant, Hector Gonzales was arrested and charged with Criminal Attempt- Rape
Forcible Compulsion under 18 § 901 §§ Al, graded as a Felony of the First Degree; Unlawful
Restraint- Serious Bodily Injury under 18 § 2902 §§ Al, graded as a Misdemeanor of the First
Degree; Indecent Exposure under 18 § 3127 §§ A, graded as a Misdemeanor of the Second Degree;
Recklessly Endangering Another Person under 18 § 2705, graded as a Misdemeanor of the Second
Degree; Criminal Attempt- IDSI Forcible Compulsion under 18 § 901 §§ A, graded as a Felony of
the First Degree; Criminal Attempt- Sexual Assault under 18 § 901 §§ A, graded as a Felony of
the Second Degree; and Indecent Assault Forcible Compulsion under 18 § 3126 §§ A2, graded as
a Misdemeanor of the Second Degree. The arrest stems from events that occurred in the city and
county of Philadelphia on July I, 2013 around 11:00 p.m., during which the Defendant sexually
assaulted two women who were strangers to him, near a park area in the Kensington Section of
Philadelphia. Following a preliminary hearing, the Bills of Information related to offenses
involving the complainant victim were listed after arraignment under CP8-51-CR-
0013381-2013 and the Bills of Information related to the offenses related to the complainant
Q.
were listed after arraignment under CP#-51-CR-0013380-2013.
On March 17, 2015, jury selection began before the Honorable Anne Marie B. Coyle Judge
of the Court of Common Pleas for the First Judicial District. The case in chief presented by the
Commonwealth of Pennsylvania, by and through its Assistant District Attorney Lindsay Kenney,
began March 18, 2015 and was completed on March 19, 2015. The Trial Court entered the Order
denying the Motion to Judgement of Acquittal orally filed on behalf of the Defendant, by and
through his trial counsel Gina Capuano, on March 19, 2015.
2
on March 19, 2015. The
After due deliberation, the jury verdicts of guilty were entered
(I) Criminal Attempt- Rape
empaneled jury found the Defendant guilty of five criminal offenses:
Forcible Compulsion under 18 § 901 §§ Al; (2) Criminal Attempt- IDSI Forcible Compulsion
18 § 2902 §§ Al; (4)
under 18 § 901 §§ A; (3) Unlawful Restraint- Serious Bodily Injury under
3127 §§ A; and (5) Indecent Assault Forcible Compulsion under
18
Indecent Exposure tinder 18 §
§ 3126 §§ A2.
Coyle, Judge of the Court of
As the presiding trial jurist, the Honorable Anne Marie B.
Common Pleas for the First Judicial District, directed the completion
of Presentence Evaluations
as well as a Mental Health
by the First Judicial District Probation and Parole Department,
retained new trial and appellate
Evaluation, and a Megan's Law Assessment. The Defendant
counsel, Nino Tinari, Esquire. On July 31, 2015, after review of all
completed presentence reports
and consideration of all relevant data submitted concerning the
Defendant at a full and fair
following sentences:
sentencing hearing, the Honorable Anne Marie B Coyle imposed the
under 18
Count 1- Criminal Attempt- Rape Forcible Compulsion (Victim-
§ 901 §§ Al Minimum ten (10) years state term
:
of confinement to Maximum twenty (20)
years state term of confinement;
under 18 §
Count 2- Unlawful Restraint- Serious Bodily Injury (Victim-
2902 §§ Al: Minimum one and one half (1.5) years state term
of confinement to Maximum
five (5) years state term of confinement to run concurrently to
Count 1;
) under 18 § 3127 §§ A: Minimum one
Count 3- Indecent Exposure (Victim-
(1) year state term of confinement to Maximum (2) years
state term of confinement to run
concurrently to Count 1;
I 'V
) under 18
Count 5- Criminal Attempt- IDSI Forcible Compulsion (Victim-
§ 901 §§ A: Minimum ten (10) years
state term of confinement to Maximum twenty (20)
years state term of confinement to run consecutively to Count
1;
e.
under 18 § 3126 §§
Count 7- Indecent Assault Forcible Compulsion (Victim-
two (2) years state term
A2: Minimum one (1) year state term of confinement to Maximum
of confinement to run consecutively to Counts and 5.
1
3
of twenty one (21) years state term of
The aggregate sentence imposed totaled a minimum
also
years state term of confinement. The Court
confinement to a maximum of forty two (42)
Violent Predator; directed the Defendant to
determined the Defendant was a Tier III, Sexually
the Defendant to stay away from the victims;
comply with all Megan's Law requirements; ordered
screens and treatment; and ordered the Defendant
required Sex Offender Supervision; random drug
avail himself of any vocation and education
trainings offered during the term of confinement.
filed a Post Sentence Motion. This
On August 4, 2015, counsel on behalf of the Defendant,
On December 2015, the Defendant filed a timely
Motion was denied on December 4, 2015. 4,
On December 21, 2015, this Court
Notice of Appeal to the Superior Court of Pennsylvania.
the Defendant to file a concise Statement of Errors Complained of on Appeal pursuant to
ordered
requested an extension of time, which was
Pa.R.A.P. 1925(b). On January 12, 2016, counsel
an extension for thirty (30) days. On February
11,
granted on the same day. This Court granted
Appeal was filed on behalf of the Defendant.
2016, a Statement of Errors Complained of on
FACTUAL HISTORY
Gonzales,
At trial, the Commonwealth of Pennsylvania established the Defendant, Hector
C,.°
who were strangers to him, as they
initially accosted two females,
Streets in Philadelphia on July 1, 2013, around
walked through a park area near 3rd & Cumberland
from her friend
11 p.m. Specifically,
testified that she received a phone call earlier
stopped at house and
asking to meet for a night out at a local pub.
c ingest two Xanax
waited downstairs. iutirer testified that she witnessed
where
friends walked to a bar in the neighborhood,
pills, which were prescribed to her. These two
a bike
drank a shot and a beer. When these two females later passed the bar, a male on
they each
along North Fourth Street. unequivocally identified this male in the
approached them
4
explained that the Defendant kept following
courtroom as the Defendant Hector Gonzales. She
a cigarette, to whic quickly replied
them as they walked through the park. He offered
"no, and get away."
to have fun," and repeatedly
estified the Defendant stated that he was "trying
and made repeated foul mouthed sexual
suggested that he and they engage in a "threesome,"
entreaties to leave them alone and their clear
requests. The Defendant ignored the women's
sexual advances. informed him
statements that they were not interested in his crude
any males. The Defendant then became aggressive
that they were not interested in the attention of
her hands and breast. (N.T. 03/18/2015, pp. 29-
with her friend MN, and began touching her on
37).
"talking dirty," and stating that he wanted
The Defendant continued to badger both women,
C
up to grabbed her shoulder, felt her breast.
to have a three-way orgy. The Defendant walked
She immediately pushed him away. MI stated to him to leave am alone because she was
clearly voiced to him that he should leave the
messed up because of the Xanax and alcohol. She
area entirely and go to where the prostitutes were
available...I started walking away, towards
returned with her friends, she witnessed
the bar, to alert her friends to help them. When
me.
on top of as she lay on the ground struggling
the Defendant, with his pants down, pounding
and her two friends "0" and "Black" started pulling the
and yelling to fend him off of her.
ankles. pants had
Defendant off of ; the Defendant's underwear was down to his
pp.
been pulled dawn her legs and her underwear
ripped. She was hysterical. (N.T. 03/18/2015,
43-46).
recollection of events
testimony at trial strongly corroborated her friend's
t
C.Q.
estified that when walked away to meet their friends, the
that evening.
5
Defendant jumped on top of her and pulled to the ground in a
park area. She testified that the
in her mouth and tried to go in
Defendant pulled out his penis, and attempted to insert his penis
her pants. la testified that she had a few drinks that night, as well as her prescribed
Xanax,
did not prohibit her
and had subsequent difficulties with her memory, but that those circumstances
from recalling material facts as she recalled events of that night.
also testified that the Defendant, while his hands were in her pants, ripped
m+R.
flailing her arms to try to
her underwear and pulled them down to her ankles. She clearly recalled
the Defendant off of her as she
stop him and yelling. When her friends returned they pulled
C IS
naked, with friends
struggled on the ground. The Defendant ran down an alley way
reporting a
in hot pursuit. When the Defendant entered a house, multiple people called police
naked man running down the street being chased by a group
of people and observing a naked man
03/18/2015, pp. 83-85).
sitting on front steps of a home in the 2600 block of Orianna Street. (N.T.
to a radio call that
Philadelphia Police Officer Jason Judge credibly testified to responding
Upon arrival he was
dispatched him to the area of 3'd and Cumberland Streets in Philadelphia.
the Defendant approached them
approached by two upset women who had excitedly reported that
his unwanted advances. They and
and attempted to sexually assault them after being rebuffed by
of Orianna Street as the path
other person directed the responding officers toward the 2600block
of the Defendant's flight.
testified that the complainant, , told him that a male,
Police Officer Judge,
v.
who was a complete stranger to her sexually assaulted her by
attempting to penetrate her vagina,
then attempted to place his penis in
and that she had tried to fight him. She told him that the male
Illihiljelothes were disheveled, ripped and torn,
her mouth. Officer Judge further testified that
pp. 130-136).
and that she appeared to be visibly distraught. (N.T. 03/18/2015,
6
Police SWAT Team,
Philadelphia Police Officer Cyprian Scott, of the Philadelphia
a male barricaded inside 2628 North Orianna
testified that he and his team were called to a report of
and one-half from the reported sexual assault
Street, Philadelphia, PA., which was located a block
at the house, he was informed the male
location. Officer Scott further testified that upon arriving
a sexual assault. The male inside, later
inside had been chased by citizens after committing
members to peaceably exit the property
idehtified as Hector Gonzales, rebuffed requests by SWAT
entry into the property. Officer Scott stated
for three hours before the SWAT team made forcible
that orders were given to break through the front door.
the first floorland heard the Defendant
Once inside the residential property, officers cleared
yelled to the officers that he would he
moving upstairs in a second floor bedroom. The Defendant
Per direction, the Defendant placed
would come down the stairs as long as his dog was unharmed.
remained unharmed. The Defendant was
the pit bull terrier into a second floor bedroom where he
were made from the victims. (N.T.
finally subdued and arrested after positive identifications
03/18/2015, pp. 145-147).
DISCUSSION
(1) in its
In his Statement of Matters Complained of on Appeal, the Defendant asserts:
did not properly consider the general
imposition of consecutive sentences, the Trial Court
State Legislature; (2) the Trial Court
sentencing guidelines provided by the Pennsylvania
of the offenses and failed to consider all
sentenced the Defendant based solely on the seriousness
with the gravity of the offense as it
relevant factors; (3) The sentence imposed is not consistent
and the community, as well as the Defendant's
relates to the impact on the life of the victim
manifestly excessive in that it is grossly
rehabilitative needs; and (4) the sentence is
disproportionate to his crime, particularly in light
of the facts surrounding the criminal episode and
7
his background. The Defendant also claims the
Judge failed to provide adequate reasons on the
record for the sentence.
was against the weight of the
Additionally, the Defendant claims that the guilty verdict
matter of law to sustain a conviction for
evidence, and that the evidence was insufficient as a
901 §§ Al), because the evidence was
Criminal Attempt- Rape Forcible Compulsion (18
§
in sexual intercourse with a complainant.
insufficient to prove the Defendant attempted to engage
two evidentiary objections. However
Lastly, the Defendant asserts that the Court failed to sustain
in light of the proceedings, and do not warrant
these two claims lack any merit, were harmless error
any relief.
without a more
I. Defendant's excessive sentence claim is not appealable
specific claim for the source of error.
excessive fails to even raise a
The Defendant's claim that the imposed sentences were
no additional and more specific
substantial question necessitating appellate review because
argument. The Court's analysis begins
violation of the sentencing code was cited to support the
the discretionary aspects of sentencing is not
with the established premise that appellate review of
when a sentencing
automatic. Cow. v. Mastromarino, 2 A.3d 581, 585 (Pa. Super. Ct. 2010). Only
provision of the Sentencing Code or an
claim sets forth the manner in which either a particular
process was violated, does a claim of
underlying fundamental norm of the sentencing
ilifouzon, 812 A.2d 617, 627(Pa. 2002).
excessiveness present a substantial question. Corn. v.
to the sentence does a party have a
Therefore, only when there is a substantial question as
Stat. Ann. § 9781 (West). If such a
right to appeal the court's determination. 42 Pa. Cons.
given great deference during the appeal,
substantial question exists, the sentencing court is still
an abuse of that discretion. Cam, v. Walls,
and the sentence can only be overturned if there was
is given broad discretion to determine the
926 A.2d 957, 961 (Pa. 2007). The sentencing court
8
aspects of a sentence because it is in the best position to evaluate the facts in that individual
circumstance. Cart, v. Mouzon, 812 A.2d 617, 620 (Pa. 2002).
A blanket claim of excessiveness, with no further allegations, does not create a qualifying
substantial question for appellate review. Id. For instance, the defendant in Mouzon claimed that
he had been improperly denied an appeal based on the fact that his sentence, while large, was
within the statutory limit. Id. at 624. While the Supreme Court remanded the case because it
disagreed with the Superior Court's reasoning concerning the statutory limits, it specifically held
that "bald allegations of excessiveness" are not sufficient to create a substantial question because
they do not identify the manner in which a sentencing provision or fundamental norm were
violated. Id. at 627; See also Cont. v. Titus, 816 A.2d 251, 255-56 (Pa. Super. Ct. 2003) (explaining
that the appeal in that case only presented issues as to whether the sentence was too harsh, which
it considered a bald allegation that the sentence was excessive that did not create a substantial
question that entitled the defendant to an appeal).
Moreover, a specific reason as to why an excessive sentence is improper, beyond it simply
being excessive, is needed to raise a substantial question. Cont. v. Raven, 97 A.3d 1244, 1253 (Pa.
Super. Ct. 2014) appeal denied, 105 A.3d 736 (Pa. 2014); Coin. v. Sheller, 961 A.2d 187, 190
(Pa. Super. Ct. 2008). For instance, the defendant in Raven claimed that the sentencing court failed
to consider pertinent mitigating factors when formulating his sentence. Id. at 1248. The Superior
Court considered this additional and specific allegation to be sufficient to raise a substantial
question and allowed the appeal to go forward. Id. at 1253; See also Com. v. Riggs, 63 A.3d 780,
786 (Pa. Super. Ct. 2012) (determining that the failure to consider the relevant sentencing factors
laid out in section 9721 of the Pennsylvania Code (the need to protect the public, gravity of the
crime, and the defendant's rehabilitative needs) presented a substantial question).
Sheller, 961 A.2d 187, 190 (Pa. Super. Ct. 2008)
the defendant
Similarly, in Com. v
recommended range without the
claimed that the sentence was improper because it exceeded the
961 A.2d at 189 (Pa. Super. Ct.
sentencing court adequately stating its basis for the deviation.
2008). The Superior Court considered this claim, which
went beyond simply claiming the sentence
Id. at 190; See also Com. v. Kenner,
was excessive, to be enough to raise a substantial question.
for the appellant for an overly lenient
784 A.2d 808, 811 (Pa. Super. Ct. 2001) (granting appeal
was raised by the sentencing court's
sentence only after determining that a substantial question
without sufficient explanation).
issuing of a sentence thirty months below the recommended range
combined claims are simply
In the instant case, no appeal is allowed because Defendant's
the sentences imposed. In the Statement
bald assertions based upon disagreement with the terms of
that the sentence imposed was is
of Matters Complained of on Appeal, Defendant merely states
to his crime, and that the trial court failed
manifestly excessive in that it is grossly disproportionate
to consider the general sentencing principles,
failed to adequately examine the Defendant's
failed to place adequate reasons on the record
background, character, and rehabilitative needs, and
how the
for the sentence given. The Defendant makes no additional concrete claims about
excessive sentence was a result of an error by the trial court.
raised by the Defendant's
Even if is determined that there was a substantial question
sentencing factors, his argument does not
allegation that the trial court failed to consider certain
In this case, this Court incorporated and
meet the abuse of discretion standard of appellate review.
and detailed sentencing data concerning the
specifically referenced its analysis of all the relevant
and oral arguments proffered by all parties
Defendant's background presented within the written
that the trial court had directed to be
and including the Presentence Investigative Reports
completed.
10
was required to impose a
In addition, all parties and counsel agreed that this Court
to the statute as a "Second
minimum of ten years of incarceration to the lead felonies pursuant
ranges of sentences pursuant
Strike" offense. This Court expressly considered the recommended
by the Pennsylvania Commission on
to the guidelines for sentencing and resentencing as adopted
case involved a sexual assault of
Sentencing as it related to each individual charge. As the instant
evidentiary hearing were properly
two females, a Megan's Law Assessment and corresponding
reasons for the sentences from
conducted. On the record, this Court specifically incorporated stated
factors on the record before
the evidentiary hearing and provided reasonable supplemental
imposing sentence.
to concurrent terms of
The imposition of consecutive terms of sentence as opposed
allow the granting of allowance
sentence is not viewed as raising a substantial question that would
of appeal in our Commonwealth. Cont. v. Marts, 889 A.2d 608 (Pa. Super. 2005). Pursuant to 42
right to impose the
Pa. C.S.A. § 9781(d) (1) and (3), this Court was well within its discretionary
reasonable discretion when it
sentences consecutively. In the instant matter, this Court exercised
for which the jury rendered
determined that sentences for three of the seven criminal offenses
standard sentences upon the
verdicts of guilt, should run consecutively. Individualized consecutive
Defendant were imposed only after careful consideration
of all relevant sentencing factors
the gravity of the offense, the
including the paramount need for protection of the public,
Defendant's prospect for rehabilitation. Hence, the Defendant has not raised any substantial
or contrary to a fundamental
question that the consecutive sentences imposed were inappropriate
norm underlying the sentencing code.
factors does not present a
The weight given by the Court to the relevant sentencing
about this Court's determination of
substantial question because this simply raises a disagreement
11
facts and the weight of factors. Again, the sentencing court is given
broad discretion in formulating
a sentence, with no automatic right of review available. Corn. v. Mastroenarino, 2 A.3d 581, 585
is a substantial question as to a
(Pa. Super. Ct. 2010). An appeal can only be granted if there
Pa. C.S.A. 9781; Mouzon, 812
violation of a specific sentencing code or a fundamental norm. 42
§
A.2d at 627.
In the instant case, the Defendant generally avers that this Court
did not give enough weight
to the "particular circumstances of the offense and the character of the defendant." Although a
be a substantial question,
claim that a sentencing court failed to consider a mitigating circumstance
create a substantial question,
mere disagreement, however, about how factors are weighed does not
the relevant facts. Coin.
since it is the sentencing court's role to appraise the importance of
v.
105 A.3d 736 (Pa. 2014); Corn.
Raven, 97 A.3d 1244, 1253 (Pa. Super. Ct. 2014) appeal denied,
(Feb. 17, 2015).
v. Zirkle, 107 A.3d 127, 133 (Pa. Super. Ct. 2014), reargurnent denied
mitigating circumstance
The Defendant Hector Gonzalez does not pinpoint any particular
in essence, amounts to his disagreement
as not being considered. As written, this blanket claim,
the record abundantly dispels any
with the recorded findings of fact by this Court. Moreover,
all relevant mitigating and
notion that this trial court did not thoroughly assess and identify
aggravating factors from ample evidence presented.
regard for: "(1) the nature and
In reviewing the record, the appellate court shall have
of the defendant; and ... (3) the
circumstances of the offense and the history and characteristics
9781 (d) (1) and (3). At sentencing,
findings upon which the sentence was based." 42 Pa. C.S.A. §
the trial court was keenly concerned that previous attempts to
rehabilitate the Defendant had failed.
This was evidenced by recitation of facts contained within the
Presentence Reports Investigative
(N.T. 07/31/2015, pp. 29-31).
Reports prepared by the Adult Probation and Parole Department.
I2
facility,
The Court noted on the record that the Defendant absconded from a juvenile commitment
had multiple narcotics convictions, and multiple convictions for violation of the
Uniform Firearms
Act.
agreed that
At the very beginning and at the end of the sentencing hearing, all parties
lead offenses
Mandatory Minimum Sentences of ten years of confinement must be imposed to the
this Court
because the Defendant qualified per statute as Second Strike Offender. In addition,
Reports.
amply addressed the guideline calculations presented within the Presentence Investigative
each offense and
Each attorney agreed with the computation of the Offense Gravity Scores for
from the
Prior Record Score as tabulated pursuant to the guideline recommendations derived
per charge
Pennsylvania Commission on Sentencing. Indeed, each period of confinement imposed
and statutory
fell squarely within the agreed upon recommended guideline sentencing ranges
mandatory minimum requirements.
the crime's
A reasonable sentence is one that includes examination of the public protection,
Code.
gravity, and the defendant's rehabilitative needs, as listed in section 42 of the Pennsylvania
42 Pa. Cons. Stat. Ann. § 9721 (West); Walls, 926 A.2d at 964. Additionally when the sentencing
court has reviewed a presentence report, it is presumed that the court has considered the
information it contains. Can. v. Boyer, 856 A.2d 149, 154 (Pa. Super. Ct. 2004) affd 891 A.2d
1265 (Pa. 2006). Facts can be considered, pursuant to § 9721(b)'s sentencing requirements, even
if the facts are subsumed within the guideline recommendation. Corn. v. Sheller, 961 A.2d 187,
192 (Pa. Super. Ct. 2008). This Court explicitly and implicitly touched
upon all of the required
considerations of 42 Pa. C.S.A. § 9721(b) when it considered the Defendant's background, current
situation and the nature of the crimes he committed.
13
this Court explicitly incorporated
Within the outlined reasons for imposition of sentences,
Ziv. Specifically, regarding the Megan's
the findings and conclusions presented by Dr. Barbara
from Dr. Barbara Ziv concerning the
Law evidentiary hearing, the Court heard credible testimony
predator ("SVP") in Pennsylvania. Dr. Ziv
criteria used to classify someone as a sexually violent
issue of a mental abnormality or personality
testified that there are two prongs to the statute: (1) the
and (2) the issue of predatory behavior. Predatory
disorder that renders someone likely to reoffend;
whom a relationship had been initiated or
behavior is an act directed at a stranger or person with
Additionally, Dr. Ziv testified that to
established, in order to promote or support victimization.
the offender and victim are addressed. Dr.
classify an individual as SVP, characteristics of both
for the criteria of SVP. (N.T. 07/31/2015, pp.
Ziv concluded that the Defendant met both prongs
8-15).
Dr. Ziv also testified that, in her expert opinion, Mr.
Gonzales meets the criteria for
behavior to
Antisocial Personality Disorder, She explained that it constitutes deviant sexual
become aroused or interested by a stranger in a
violent act. Mr. Gonzales displayed a pattern of
disregard for and violation of the rights of others.
This pattern of behavior was firmly established
Dr. Ziv had reviewed. As an adult, Hector
within the Defendant's reported criminal history that
arrests, resulting in multiple convictions
Gonzales had accumulated fourteen (14) adult criminal
which he was adjudicated delinquent twice. Dr.
for serious offenses and three juvenile arrests in
Ziv noted the impulsivity ingredient present for
niany of Mr. Gonzales's crimes. Additionally, the
and reckless disregard for the safety of self
irritability and aggressive nature of crimes committed,
and others was also highlighted.
Lastly, Dr. Ziv testified to how Mr. Gonzales
met the predatory behavior prong of the
were strangers; Mr. Gonzales did not seem to
statute. She cited the fact that the two women
14
he became aggressive in a sexual
previously plan the attack;, and when the women refused him,
to be interviewed, Dr. Ziv had
nature. It was also remarked that, although Mr. Gonzales declined
Court expressly stated its agreement
sufficient information to provide her conclusions. Id. This
that Mr. Gonzalez met the criteria of a
with Dr. Ziv's findings and conclusions when determining
Sexually Violent Predator as identified in the statute.
On the record this Court specified that it reviewed all
relevant data sources supporting its
decision and recited specific reasons for each finding as follows:
Whether or not the offense involved multiple victims:
it
"...Factor No. 1,
who
both of those victims
did. It was all in one day and it was a very long day for
demonstrated to any reasonable
were both strangers to this Defendant and clearly
human being they had no interest in Mr. Gonzalez.
No. 2: Whether or not this individual exceeded the
means necessary to
the means necessary to
achieve the offense: I find that he specifically exceeded
and assaulted
achieve this offense in the manner in which he restrained
relationship to the
after he groped the other young lady and was violent. The
of the victims were
individuals -to the victims -they were strangers to him. The ages
28 and 30 years old.
unusual amount of
Factor No. 6: Whether or not this offense displayed an
his crime: I note his extreme
cruelty by th- -f9ndant during the commission of of
cruelty to and I remember her because she was someone who was
very limited ability both physically and mentally.
not noted in the
Mental capacities of the victim -actually while its It
and of the two,
assessment, I did have the opportunity to observe both victims
to Mr. Gonzalez.
had considerable deficits that were easily observable
the moment, I'll come
The other young lady -whose name escapes me for
is the reason why this offense
back to that- had a lot more strength to her, and indeed
Pgs. 28-31.)
ended, because she enlisted help." (N.T. July 31, 2015
relevant data contained
In addition, this Court incorporated its thorough review of the
Assessments. This Court referenced the
within the Pre -Sentence Reports and Mental Health
substances, including heroin and
Defendant's documented addiction to multiple illegal narcotic
l5
that multiple failed
marijuana beginning the age of fifteen years old. This Court also remarked
efforts to rehabilitate the Defendant following the two adjudications
of delinquency. This Court
by a Court into the Don
also noted that in 1991, the Defendant had been formerly committed
and that he absconded
Guanella Juvenile Program to address his addictions and delinquency causes
family reported that the
from the program after a short stay of only thirty (30) days. His immediate
Defendant as a juvenile could not be controlled. As a result of his
historical non-compliance one
of his later juvenile arrests resulted in adult certification.
adjustment to
Overall, this Court was cognizant of the fact that the Defendant's poor
accumulated fourteen
supervision as a juvenile continued through adulthood. As an adult, he
for serious offenses including
arrests resulting in eight convictions with five commitments
had violated previously
Robbery, Carrying A Firearm, Delivery of Controlled Substances. He
He hampered efforts of
imposed terms under parole or probationary periods of supervision.
terminated the interview
evaluators to understand him. For instance, the Defendant abruptly
this investigator was unable to
conducted by the Pre -Sentence Investigator "after realizing that
(See Excerpt Page 2 of the Pre-
provide him with specific information regarding his sentencing."
Sentence Report)
This Court reasonably concluded that the Defendant, who was
thirty-nine years of age,
demonstrated a high likelihood or reoffending and a high rate
of sexual recidivism and
the sentences. This Court
incorporated this finding within the multiple reasons for the imposing
circumstances from
formally supplemented its detailed findings with its review of the underlying
the Defendant's prior conviction for Robbery which had formed
the basis for imposition of the
mandatory minimum ten year sentence on the record as follows:
16
sir, I do incorporate all the findings
"... Mr. Gonzalez, at this point in time,
Law Assessment into the
that I previously stated in reference to the Megan's
consideration of my sentence.
also reviewed the
I've reviewed all the information provided thus far. I've
is a second strike. I supplement
guidelines in this matter, as well as the fact that this
to the first strike, sir, the robbery, that
my findings because I noted that with respect
was also of a woman; a 40 -year old woman
whose unfortunate position was to be
seated in her parked vehicle. She was greeted by
you producing a firearm and
your brains out." You were
threatening to "Get off my fucking arm or I'll blow
convicted after a waiver trial on May 23, 2000 for
that offense.
your future and the future
So I have a great deal of concern about you and
I do find that your risk
of the folks in Philadelphia when you are released because
Pages 42-43.)
of recidivism is extremely high." (See N.T. July 31, 2015
and succinctly referenced all relevant
In short, this trial court thoroughly investigated
No abuse of discretion occurred.
sentencing factors before entering the Order of Sentence.
present at trial.
H. The verdict was not against the weight of the evidence
the "jury verdict was against the weight of
The Defendant next summarily contends that
the evidence" at trial. The Defendant does not
specify which verdict at to which charge was
claimed to be insufficiently supported.
standard of review for weight of the
The Supreme Court has set forth the following
evidence claims:
claim appears to lie in ensuring
"The essence of appellate review for a weight
Where the record adequately
that the trial court's decision has record support.
supports the trial court, the trial court has acted
within the limits of its discretion."
A motion for a new trial based on
Corn. v. Roberts, 2016 Pa. Super 22, 133 A.3d 759, 770 (2016).
the evidence is discretionally determined by the
a claim that the verdict is against the weight of
or a mere conflict in the testimony or because
trial court. A new trial should not be granted because
at a different conclusion. Rather, the role of the
the judge on the same facts would have arrived
17
so clearly of greater
trial judge is to determine that notwithstanding all the facts, certain facts are
is to deny justice. Id.
weight that to ignore them or to give them equal weight with all the facts
the evidence claim
An appellate court's standard of review when presented with a weight of
is distinct from the standard of review applied by the trial court. Appellate review of a weight
the verdict
claim is a review of the exercise of discretion, not of the underlying question of whether
is against the weight of the evidence. Commonwealth v. Clay, 619 Pa. 423, 64 A.3d 1049, 1054-
to prevail on a challenge to
55 (2013) (citations and quotation omitted). In order for an appellant
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. Sullivan, 820 A.2d 795, 806 (Pa.
Super.2003) (citation omitted).
In the instant case, the record clearly supports a conviction for all charges
including the
sexually harassed
offense of Attempted Rape. As previously stated, the Defendant stalked and
After repeated
two women who were strangers to him as they walked through a park at night.
requests by the women for the Defendant to leave them alone, as well as
both women refusing to
and
participate in a three-way orgy in public, the Defendant indecently assaulted
WV 14.
then violently attacked
get
credibly testified that after her friend went across the street to the bar to
into a nearby dark
help, Defendant suddenly jumped on top of her and dragged her onto the ground
on the ground and
park area, pulled her clothes down to her ankles as he forcibly kept her pinned
testified
ripped her underWear, attempted to insert his penis into her mouth and bottom.
with his pants down
that when she returned with aid, she saw the Defendant on top of her friend
She observed
while her friend was yelling and vainly trying to get him off of her.
ripped and disarrayed clothing and tha was hysterical. She stated that it took
18
multiple persons to get him off of her friend who was and remains a plainly observably disabled
diminutive person.
The victims' credible testimony was also corroborated by responding uniformed
Philadelphia Police Officers who testified that the two distraught women immediately reported
what had happened, and provided the direction of Defendant's flight. Officers noted that both
116
women were highly emotional and that appeared quite disheveled. The Defendant's
response by ignoring the efforts and commands of police officers within the three hour standoff
with the SWAT unit uniquely reflected his consciousness of guilt. The overall evidence introduced
in this instant matter was far from tenuous, vague or uncertain that the verdict shocked the
conscious of the court. To the contrary, the evidence was sufficiently compelling to support each
verdict of guilty for each charge.
III. The evidence presented at trial was sufficient to prove beyond a reasonable
doubt that the Defendant, Hector Gonzales, attempted to engage in sexual
intercourse with the complainant.
The Defendant also contends that the evidence at trial was insufficient as a matter of law
to sustain a conviction of Criminal Attempt- Rape Forcible Compulsion (18 § 901 §§ A), because
the evidence was insufficient to prove that the Defendant attempted to engage "in sexual
intercourse with a complainant." 18 § 3121 §§ A. In reviewing the sufficiency of evidence, an
appellate court considers "whether the evidence presented at trial was sufficient to establish all
elements of the crime beyond a reasonable doubt." Commonwealth v. Burton, 2 A.3d 598 (Pa.
Super. Ct. 2010). The appellate court views all of the evidence and reasonable inferences
therefrom in a light most favorable to the Commonwealth as verdict winner. Id. Where there is
sufficient evidence to enable the trier of fact to find every element of the crime has been established
beyond a reasonable doubt, the sufficiency of the evidence claim must fail. Id. The evidence
19
established at trial need not preclude every possibility of innocence and the fact-finder is free to
believe all, part, or none of the evidence presented." Commonwealth v. Feliciano, 2013 Pa. Super
117, 67 A.3d 19 quoting Commonwealth v. Stokes, 2011 Pa. Super 261, 38 A.3d 846, 853-854
(2011) (internal citations and quotations omitted).
In defining the crime of rape, 18 Pa. C.S.A. 3121 provides: "a person commits a felony of
the first degree when he engages in sexual intercourse with another person not his spouse: (1) by
forcible compulsion; (2) by threat of forcible compulsion that would prevent resistance by a person
of reasonable resolution. Criminal attempt is defined by 18 Pa. C.S.A. 901(a): "a person commits
an attempt when, with intent to commit a specific crime, he does any act which constitutes a
substantial step toward the commission of the crime." Commonwealth v. Russell, 313 Pa. Super.
534, 542, 460 A.2d 316, 320 (1983).
In the instant case, the Defendant jumped on top of the victim, pulled his pants down, and
ripped her underwear down to her ankles. He further fondled her breast, and attempted to insert
his penis into her mouth and vagina. The Defendant was only stopped when the victim's friends
began pulling him physically pulling him off of her. "The substantial step test broadens the scope
of attempt liability by concentrating on the acts the defendant has done and does not any longer
focus on the acts remaining to be done before the actual commission of the crime." Commonwealth
v. Gillian, 273 Pa. Super. at 589-90, 417 A.2d at 1205 (1980). Additionally, intent can be proven
by direct or circumstantial evidence; it may be inferred from acts or conduct or from the attendant
circumstances. Commonwealth v. Gregory, 267 Pa. Super. 103, 406 A.2d 539 (1979). The
supporting facts as listed in the above paragraphs amply establish the Defendant's intent to commit
rape. Fortunately his malicious intent and committed efforts were thwarted by spirited Samaritans.
The Defendant's claims fail to state any basis for relief
20
IV. The claims regarding the trial court's response to two individually raised
objections at trial even as alleged did not present any harmful error.
The Defendant contends that: "After an evidentiary objection by the Defendant, the Trial
Court failed to sustain or overrule the objection, stating to the witness on the stand, "Just tell us
what you remember seeing," See Notes of Testimony, March 18, 2015 at 34." The referred
CQ
transcribed notes of testimony reflect that the witness who had been speaking was
who was providing a lengthy emotionally charged and rapidly spoken recitation of all events
C
during direct examination. Towards the end of this block of this testimony stated:
"...He had the bike. That's when I seen my friends "0" and Black. I told them to
come. I was telling them because they were asking what's going on. I was telling
them there's this guy who's talking nasty to us and he just don't waata go. They
came over there. As I walking, I seen him in the back on top of SS with his
shorts on the floor, his underwear was down to his ankles, and I seen her trying to
push of him off, And I don't' know what she was saying, but I know it was
something, like, probably telling him to get off of her."
The transcribed testimony then reflects an objection attributed to the prosecutor. Even
assuming the objection actually was raised by the defense, the Court's response to the objection
was fair. In an abundance of caution since it was unclear as to whether her last comment was a
combined deduction of what she had perceived or an opinion of what she was perceiving, this
Court interrupted and correctly redirected this upset lay witness her by instructing her
to "Just tell us what you remember seeing. Afterward, clarified her testimony by
confining herself to relating her observations.
continued giving her direct testimony uninterrupted until she stated as follows:
"... He was trying to get into a house. I didn't know he lived there. He was
trying to kick the door and couldn't get in. Then he went through the alley way. So
I guess then he went through the back, and I kept telling them to call the cop. We
was waiting outside in front of his house for the cops. They made it and they came.
That's when they found him in the house. Then they was asking if she wanted to
press charges, and I told her, yes, do it. I been in situations like this, and we need
21
to keep thesepeople off the street, because anything could happen to a kid or a little
girl." (See N.T. March 18, 2015, page 34.)
C
At this point, the Defense raised an objection. Because was simply providing
her motivation for encouraging to press charges, this Court redirected her once again
by stating. "All right. OK, Go ahead." (See N.T. March 18, 2015, page 36.) Subsequently, upon
further examination she clarified the reasons for her statements and impressions. Her comment
was not prejudicial. No harmful error occurred necessitating the extreme measure of granting a
new trial.
CONCLUSION
In reviewing the entire record, this Court finds no harmful, prejudicial, or reversible error.
Accordingly, the judgment of the trial court should be affirmed.
By the Court,
DATE: / /// /76 71/0/
nne M. y 41e-,4girr
22
Com. v. Gonzales, H.
Combined Opinion