Com. v. Gonzales, H.

• Court: Superior Court of Pennsylvania
• Decided: November 21, 2017
• Docket: 3690 EDA 2015
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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.

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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.

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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

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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