J-S30031-25
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : WILMER ORTEGA-FRANCO : : Appellant : No. 871 EDA 2025
Appeal from the Judgment of Sentence Entered March 6, 2025 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-CR-0002512-2024
BEFORE: OLSON, J., MURRAY, J., and FORD ELLIOTT, P.J.E.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 31, 2025
Appellant, Wilmer Ortega-Franco1, appeals from the judgment of
sentence imposed by the Court of Common Pleas of Lehigh County after a trial
court found him guilty of criminal trespass, burglary, and stalking.2 Appellant
challenges the sufficiency of evidence for criminal trespass and burglary, the
supposed failure to merge his sentences for burglary and stalking, and the
discretionary aspects of his sentence. Upon review, we affirm.
The trial court summarized the factual and procedural history of this
case as follows:
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 We note that Appellant goes by various names which are mentioned throughout the record, such as “Benito”, “Ortega Franco”, and “Wil”.
2 18 Pa.C.S. §§ 3503(a)(1)(i), 3502(a)(4), and 2709.1(a)(1), respectively. J-S30031-25
[Blakely McHugh was a morning reporter for WFMZ starting in December 2022. She resided at Cityplace, an apartment complex in Allentown, Pennsylvania. Cityplace is a secure building with three locked exterior doors. Visitors there must use the intercom at only two of the doors to contact residents for entry, which takes a visitor’s photo. Residents can allow or deny entry, and denied guests can leave an electronic message.]
On April 26, 2024, [] McHugh went to California [for] personal/family matters and [stayed] until the first week of June 2024. On April 27, 2024, at 3:38 [p.m.], while [] in California, [McHugh] received a [phone request] from an individual, later identified as [Appellant], wanting to gain access to the building. Not knowing the individual, [she denied] access. At 3:41 [p.m.], [] McHugh then received an electronic message stating, “be a good friend.” Then, at 3:42 [p.m.], [] the same [person] sent another message [with] the email address “benitoortega30@icloud.com.” Later [] at 5:42 [p.m.], [] McHugh received another [access request]. Once again, [] McHugh denied access []. Upon receiving this second request, [] McHugh grew concerned and contacted [Cityplace] security [who said they would investigate].
Thereafter, on the morning of April 29, 2024, [] McHugh received an email from David Herrington, WFMZ’s IT technician and digital media developer, [about concerning messages sent to WFMZ’s website/app]. [WFMZ] had received, inter alia, a photograph of [] McHugh’s apartment [unit] door [with] a pig statue [, which Herrington recognized from visiting her apartment, and which demonstrated Appellant entered the apartment building]. The comment associated with the post [said,] “quiero concerla por favooooorrrrrr, I’m going to the army.” [P]osts submitted to WFMZ between April 1, 2024[,] and April 29, 2024[,] had listed “Wil” or “Wilmer” as the [person’s name] who uploaded the images, along with the email address francowilmer6@gmail.com.
However, on April 30, 2024, an uploaded image of a text exchange with “Jacky,” which was consistent with the other screenshots of text conversations with “Jacky,” listed ubereats1330@gmail.com as the email address and “Mr. Foodie” as the person who uploaded the image. Many of the uploaded images included contact [details: 424 E. Mosser Street; a last name of “Ortega;” a phone number of 484-408-2477; and [image] titles like “Playita Little Bitch” or “I want my BM.”] Based on these concerning communications
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received by WFMZ, Herrington notified the [n]ews [d]irector, who [] contacted the police.
Later that day at 2:57 [p.m.], but before WFMZ [could] file a police report, [] McHugh [got another entry request for her building from the same person]. [] McHugh rejected the call and notified [Allentown police]. Officer Pablo Vazquez [] was dispatched to [Cityplace], [] for an unwanted person. He was provided [a suspect description] (blue floral shirt, jeans, and medallion necklace) [from Cityplace’s intercom], as well as the name of “Wilmer” by [] McHugh.
Officer Vazquez, along with Officer Keegan Connelly, [searched the apartment but found no one matching] the description. However, when Officers Vazquez and Connelly responded to a possible disturbance two [] blocks away at Sports and Social Allentown, [] Officer Vazquez encountered the suspect alone in a booth [matching] the description provided[.] Officer Vazquez approached him and asked him for his identification. The suspect was identified through his identification [card] [with a residence] at 242 E. Mosser Street, Allentown. Officer Vazquez advised [Appellant] not to return to the apartment complex and that he would be arrested if he returned. [Appellant] indicated his understanding and assured Officer Vazquez that he would not return to the apartment building.
Shortly thereafter, at 3:58 [p.m.], [] McHugh received a Facebook message saying, “You got me on [sic] trouble.” Upon checking her Facebook messages, [] McHugh saw that she had received a message from “Wilmer Ortega Franco” earlier that day at 8:24 [a.m.] Specifically, Wilmer Ortega Franco had sent her a photograph of her front door with the pig statue by the door jamb; the same concerning photograph that WFMZ had received. In fact, he had added music to the photograph and [] turned it into a video. Under the photograph, he posted, “I want [sic] show u the real life, we don’t need a million.” [At] 9:32 [a.m., Wilmer Ortega Franco posted], “We are living in a simulation ... I’m the emulator ... And Neo want a new Kingdom.” [] McHugh also noted that on April 26, 2024[,] at 1:58 [a.m.], Wilmer Ortega Franco posted[,] “The most beautiful journalist[,]” and then at 2:02 [p.m.], “Wait for me, just 1 more month.”
In addition, under the name “Wil” and the handle “_theyhatethisnigga,” [] McHugh received [many alarming Instagram] comments and [blocked this account]. [] McHugh
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believes that [Appellant] then made a new Instagram account under the handle “psycObvnny” with the name of "Benito Ortega” [] to continue to view her posts and comment. Overall, all [] the communications [] made [] McHugh very fearful and caused her emotional distress[; she] had nightmares [] in California[,] and [] felt very unsafe.
In addition, on April 29, 2024, at approximately 3:00 [p.m.], Officer Jeramy DeVaul [at] the Allentown Police Department [learned from] Sergeant Joshua Brubaker [] that WFMZ [wanted to file a police report on McHugh’s behalf]. Sergeant Brubaker [said] McHugh would [call to] make the report. At approximately 3:40 [p.m.], Officer DeVaul [spoke to McHugh, who sounded very concerned and afraid.] [That same day, c]harges were approved at 8:30 [p.m. Appellant] was arrested on April 30, 2024[,] and released on bail.
On May 1, 2024, [Appellant] entered the [] Allentown Police Department [headquarters regarding his involvement in a car accident]. When [Appellant] identified himself as Wilmer Franco, Officer DeVaul recognized his name [and got permission to interview him about his April 30th arrest, advising Appellant he could refuse]. [Appellant agreed and was taken to an interview room]. The conversation was recorded[,] and [Appellant] was again advised that he was free to leave at any time. [Appellant gave his email address (francowilmer6@gmail.com), his home address (242 East Mosser Street), phone number (484-408- 2477), and Instagram account username (_theyhatethisnigga).] [Appellant] admitted to sending [] McHugh [] “The most beautiful journalist[” Facebook message[.]
However, [Appellant] denied sending any other Facebook messages to [McHugh] and indicated that his laptop had been stolen and [his identity was being fraudulently used]. [Appellant] also admitted that the text exchanges depicted in many of the screenshots uploaded to WFMZ were between him and a friend named Jacky, he denied having uploaded them to WFMZ. Similarly, [Appellant] admitted [to] seeing the photograph of [] McHugh’s apartment door with the pig statue in his iCloud account but denied sending it to anyone. When [Appellant] was shown the photographs taken by [Cityplace’s] intercom system, [Appellant] stated, “It looks like me.” Additionally, [Appellant] indicated that he never got into the building, although he would have liked to. Also, [Appellant] admitted to Officer DeVaul that
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_theyhatethisnigga is his username for Instagram and that psycObvnny was a newer Instagram account that he had created.
[On January 8, 2025, the court presided over a nonjury trial.]
[Appellant] testified at trial that his laptop had been stolen and that his identity had been fraudulently used. While [Appellant] admitted to commenting on [] McHugh’s stories on Instagram and posting the first post on Facebook, [Appellant] denied any other electronic communication with [] McHugh. Indeed, [Appellant] indicated that he watched the WFMZ morning show, but denied sending any of the photographs to their website/app. [Appellant] also stated that prior to his arrest[,] he did not know where [] McHugh lived and that he had never been to her apartment despite photographic evidence undermining this assertion. [Appellant] also contradicted Officer Vazquez’s testimony and testified that Officer Vazquez approached him in Sports and Social Allentown on April 29, 2024[, regarding]a stolen bicycle, [and] not [based on] an unwanted person [report] at [Cityplace. The trial] court found [Appellant’s] testimony to be contrary to the evidence and not credible.
Trial Court Opinion, 4/10/25, at 4-11 (citations omitted, reformatted, and
brackets added).
The trial court found Appellant guilty of criminal trespass, burglary, and
stalking. See N.T. Trial, 1/8/25, at 132. Sentencing was deferred for the
preparation of a presentence investigation report (PSI) and mental health
evaluation. See id. at 133. On March 6, 2025, the trial court presided over
the sentencing hearing, during which it stated it had thoroughly reviewed the
PSI, McHugh’s victim impact statement, the arguments of defense counsel
and the Commonwealth, the circumstances of the case, and all relevant
factors. See N.T. Sentencing Hearing, 3/6/25, at 8-10. Thereafter, the trial
court sentenced Appellant to seven months to five years’ imprisonment for
burglary consecutively with a separate imprisonment term of twenty months
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to five years for stalking. See id. at 11. The aggregate imprisonment term
was thus twenty-seven months to ten years. See id. The criminal trespass
count merged with burglary. See id. at 10-11.3
On March 11, 2025, Appellant filed a post-sentence motion, which the
trial court denied. See Post-Sentence Motion, 3/11/25; Order (Denying Post-
Sentence Motion), 3/20/25. Appellant timely filed a notice of appeal and a
court-ordered concise statement of errors complained of on appeal pursuant
to Pennsylvania Rule of Appellate Procedure 1925(b), and the trial court filed
3 The imposed sentence for burglary was in the aggravated range recommended by the Sentencing Guidelines, and the stalking term was above the aggravated range recommended by the guidelines.
For burglary, the recommended standard range was one to four months’ imprisonment, with an aggravated range of up to seven months’ imprisonment. See N.T. Sentencing Hearing, 3/6/25, at 3 (noting Appellant’s prior record score is 0 and the offense gravity score of 8); see also 204 Pa. Code. § 303a.9 (8th ed.) (setting the offense gravity score of 8 for burglary with no person present under Section 3502(a)(4)); 204 Pa. Code § 303a.14 (8th ed.) (applicable sentencing matrix).
For stalking, the recommended standard range was twenty-four months’ probation, with an aggravated range of up to thirty months’ probation. See N.T. Sentencing Hearing, 3/6/25, at 3 (noting Appellant’s prior record score is 0 and the offense gravity score of 7); see also 204 Pa. Code. § 303a.3(a)(4) (8th ed.) (general omnibus list applies for offense not listed in Section 303a.9) (only setting forth the offense gravity scores for recidivist counts of stalking under Section 2709.1(a)(1)); 204 Pa. Code § 303a.11 (omnibus offense gravity score table setting an offense gravity score of 7 for misdemeanors of the first degree; 204 Pa. Code § 303a.11) (8th ed.) (applicable sentencing matrix).
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an opinion. See Notice of Appeal, 3/31/25; Rule 1925(b) Order, 4/1/25; Rule
1925(b) Statement, 4/7/25; Trial Court Opinion, 4/10/25.
Appellant presents the following questions for our review:
I. Whether the evidence was sufficient to establish beyond a reasonable doubt that [Appellant] was not licensed or privileged to enter the victim’s apartment building for the offenses of burglary and criminal trespass?
II. Whether the evidence was sufficient to establish beyond a reasonable doubt that [Appellant] entered the victim’s apartment building with the intent to commit a crime therein for the offense of burglary?
III. Whether 18 [Pa.C.S. § 3502(d)] required the [t]rial [c]ourt’s sentence for stalking to merge with its sentence for burglary?
IV. Whether the [t]rial [c]ourt abused its discretion in its aggregate sentence for [Appellant] when the sentencing factors here were not compellingly different to justify an aggravated range sentence for burglary and a sentence outside of the [range recommended by the] Pennsylvania Sentencing Guidelines for stalking?
Appellant’s Brief at 4-5 (answers of the trial court and suggested answers
omitted).
In his first issue and second issues, Appellant challenges the sufficiency
of evidence sustaining his burglary and criminal trespass convictions. See
Appellant’s Brief at 14-18. We begin by noting our standard of review for
sufficiency of evidence:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In
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addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part[,] or none of the evidence.
Commonwealth v. Gary, 332 A.3d 118, 123–24 (Pa. Super. 2025) (quoting
Commonwealth v. Gause, 164 A.3d 532, 540-41 (Pa. Super. 2017) (en
banc) (citation omitted)).
In his first issue, Appellant argues that the evidence was insufficient to
convict him of burglary and criminal trespass because the Commonwealth
failed to prove, beyond a reasonable doubt, that he was not licensed or
privileged to enter the victim’s apartment building. See Appellant’s Brief at
14-16. In doing so, he refers us to statutory defenses, which required the
Commonwealth to prove that he was not privileged or licensed to enter the
victim’s apartment building. See id. at 15 (citing 18 Pa.C.S. §§ 3502(b)(3)
and 3503(c)(3)); see also Commonwealth v. Hayes, 460 A.2d 791, 795
(Pa. Super. 1983) (“it is the Commonwealth’s burden to prove beyond a
reasonable doubt that the defendant was not licensed or privileged to enter
the building”). Appellant also cites Commonwealth v. Knight, stating that
our Court has required that, “in circumstances where multiple tenants have
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access, that a defendant’s lack of license or privilege be inferred beyond a
reasonable doubt based on the circumstances surrounding a defendant’s
entry.” See id. (citing Commonwealth v. Knight, 419 A.2d 492, 500 (Pa.
Super. 1980)).
Applying Knight, Appellant asserts that the Commonwealth’s evidence
did not support an inference for a lack of license or privilege. See id. He
argues that the Cityplace building had a shared common space for guests,
residents, and employees. See id. At the same time, the Commonwealth only
had the victim testify to prove that he lacked a license or privilege to enter.
He thus argues that the only evidence that established his presence at the
apartment building was a photograph of him at one of the building’s entrances.
See id. Therefore, he concludes that the trial court erred by speculating that
he lacked a license or privilege to enter the apartment building. See id. We
disagree.
At trial, the victim testified that Cityplace’s entrance was not open to
the public. See N.T. Trial, 1/8/25, at 15. Guests there must call residents via
the intercom to have the residents unlock the entrance. See id. at 16. The
victim’s apartment was on the seventh floor and only accessible by elevator.
See id. at 15. Appellant sent a message to the victim’s Facebook account with
a photograph of her individual apartment’s front door next to a pig statue.
See id. at 25; Commonwealth’s Trial Exhibit C-30 (4/29/24 Facebook
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Message). She testified that she did not know anyone in the building with that
same pig statue. See N.T. Trial, 1/8/25, at 25-26.
Appellant’s testimony contradicted that he sent Facebook messages to
the victim of a photograph of her front door. See N.T. Trial, 1/8/25, at 119
(stating he only sent one Facebook message); Commonwealth’s Trial Exhibit
C-26 (4/26/24 Facebook Message). However, the trial court found Appellant
not credible and decided based on the totality of circumstances and evidence
produced by the Commonwealth that he was not privileged or licensed to enter
Cityplace. See Trial Court Opinion, 4/10/25, at 11.4 Following our review of
the record and viewing it in the light most favorable to the Commonwealth,
we conclude that it was a reasonable inference that Appellant was not
privileged or licensed to enter Cityplace. Accordingly, Appellant’s first claim
has no merit.
Appellant also raises a sufficiency challenge to his burglary conviction.
See Appellant’s Brief at 16-18. Under the subsection charged in this case, a
person commits the offense of burglary if, with the intent to enter to commit
a crime therein, the person “enters a building or occupied structure, or
separately secured or occupied portion thereof that is not adapted for
overnight accommodations in which at the time of the offense no person is
4 We note that Appellant admitted to taking the photograph of victim’s front
door in his brief. See Appellant’s Brief at 17 (“The fact that [Appellant] took a photo of [victim].”).
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present.” 18 Pa.C.S. § 3502(a)(4). Appellant argues that the Commonwealth
failed to prove that he intended to commit a crime in the Cityplace building,
which was stalking. See Appellant’s Brief at 17.
Under our Crimes Code, a person commits the crime of stalking when
the person “engages in a course of conduct or repeatedly commits acts toward
another person, including following the person without proper authority, under
circumstances which demonstrate either an intent to place such other person
in a reasonable fear of bodily injury or to cause substantial emotional distress
to such other person.” 18 Pa.C.S. § 2709.1(a)(1). Appellant argues that he
only communicated with the victim once and that does not establish a
repeated course of conduct to prove his stalking conviction. See Appellant’s
Brief at 17-18. Therefore, he reasons that, since the Commonwealth failed to
prove his intent to stalk the victim through a single contact, his burglary
conviction also failed because he had no intention to commit an underlying
crime for purposes of the burglary statute. See id. at 18.
Here, the trial court concluded that the Commonwealth presented
sufficient evidence to support Appellant’s conviction for burglary. See Trial
Court Opinion, 4/10/25, at 11. We agree with the trial court’s conclusion as
the fact-finder. First, Appellant baldly asserts that the Commonwealth only
proved that he made one attempt at contacting the victim, which has no merit.
The record demonstrates that Appellant contacted the victim multiple times
through various social media platforms. See id. at 48. He appeared at
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Cityplace approximately four times to try and gain entry into the complex.
See id. at 19-21. Moreover, the victim testified that she was fearful of
Appellant. See id. at 48-49. Viewing the totality of the evidence in the light
most favorable to the Commonwealth as the verdict winner, the
Commonwealth presented sufficient evidence to support Appellant’s
conviction of stalking, which in turn justifies his burglary conviction. Therefore,
Appellant’s second issue has no merit.
In his third issue, Appellant argues that the trial court erred when it
imposed separate and consecutive sentences for his burglary and stalking
convictions. See Appellant’s Brief at 18. Appellant asserts that Section
3502(d) of the Pennsylvania Crimes Code requires that his sentence for
stalking merge with his sentence for burglary. See id. at 19. Subsection (d)
states: “[a] person may not be sentenced both for burglary and for the offense
which it was his intent to commit after the burglarious entry or for an attempt
to commit that offense, unless the additional offense constitutes a felony of
the first or second degree.” 18 Pa.C.S. §3502(d).
He contends that if the evidence supports that Appellant had the intent
to commit a crime after his entry for burglary, the crime he intended was
stalking. See id. Since his stalking offense was graded as a misdemeanor, he
concludes that the trial court should have merged the sentences for both
stalking and burglary based on the plain meaning of the statute. See id.
Therefore, he alleges that the trial court erred in concluding that Section
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3502(d) does not apply because Appellant committed the crime of stalking
outside the context of his burglary. See id.
“A claim that crimes should have merged for sentencing purposes raises
a challenge to the legality of the sentence. Therefore, our standard of review
is de novo and our scope of review is plenary.” Commonwealth v. Leaner,
202 A.3d 749, 784 (Pa. Super. 2019) (citation omitted). Under 42 Pa.C.S. §
9765, the Pennsylvania General Assembly has defined the circumstances
under which convictions for separate crimes merge for the purpose of
sentencing:
No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense.
42 Pa.C.S. § 9765.
Appellant’s argument has no merit. The trial court explained that
Appellant was charged with burglary because he entered the victim’s
apartment complex, Cityplace with the intent to commit a crime. See Trial
Court Opinion (Post-Sentence Motion), 3/20/25, at 2-35; see also Criminal
Information, 8/19/24, at 1. Moreover, Appellant was charged with stalking for
repeatedly messaging the victim on various social media platforms. See id.
After reviewing the record, we agree with the trial court’s finding that
5The trial court incorporated its opinion denying Appellant’s post-sentence motion in its Rule 1925(a) opinion. See Trial Court Opinion, 4/10/25, at 2.
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Appellant’s conviction and sentence for stalking does not stem from his
admitted intended conduct of gaining entry into Cityplace. Instead, it stems
his separate criminal acts of repeatedly contacting the victim on social media
platforms. Accordingly, Appellant’s third issue is meritless.
In issue four, Appellant challenges the discretionary aspects of his
sentence. See Appellant’s Brief at 20. “The right to appellate review of the
discretionary aspects of a sentence is not absolute and must be considered a
petition for permission to appeal.” Commonwealth v. Davis, 341 A.3d 808,
812 (Pa. Super. 2025) (citation omitted). Since Appellant is challenging the
discretionary aspects of his sentence, he must invoke this Court’s jurisdiction
by satisfying a four-part test:
(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, [see] 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. Harper, 273 A.3d 1089, 1096 (Pa. Super. 2022) (citing
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation
and brackets omitted)).
“Only if the appeal satisfies these requirements may we proceed to
decide the substantive merits of Appellant’s claim.” Commonwealth v.
Luketic, 162 A.3d 1149, 1159-60 (Pa. Super. 2017). We find that Appellant
has met the first three requirements. See Moury, 992 A.2d at 170. He filed
a timely appeal to this Court, preserved this issue for our review in his post-
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sentence motion, and included a Rule 2119(f) statement in his brief. See Post-
Sentence Motion, 3/11/25, at 2-3 (unpaginated); Appellant’s Brief at 12-13.
Therefore, we must decide whether Appellant has raised a substantial question
for our review.
“The determination of whether a particular case raises a substantial
question is to be evaluated on a case-by-case basis.” Commonwealth v.
Neafie, 341 A.3d 813, 818 (Pa. Super. 2025) (citation omitted). This Court
will not look beyond the statement of questions involved and the prefatory
Rule 2119(f) statement to determine whether a substantial question exists.
See Commonwealth v. Crawford, 257 A.3d 75, 78-79 (Pa. Super. 2021)
(citation omitted). Moreover, for purposes of determining what constitutes a
substantial question, “we do not accept bald assertions of sentencing errors,”
but rather require an appellant to “articulat[e] the way in which the court’s
actions violated the sentencing code.” Commonwealth v. Malovich, 903
A.2d 1247, 1252 (Pa. Super. 2006). “A substantial question exists only when
appellant advances a colorable argument that the sentencing judge’s actions
were either: (1) inconsistent with a specific provision of the Sentencing Code;
or (2) contrary to the fundamental norms which underlie the sentencing
process.” Commonwealth v. Dortch, 343 A.3d 298, 310 (Pa. Super. 2025).
Here, Appellant generally argues that the trial court did not rely upon
sufficient facts to impose either an aggravated sentence or a sentence outside
the Pennsylvania Sentencing Guidelines. See Appellant’s Brief at 13 (citing
Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006).
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This Court has held that both a claim that the sentencing court imposed
a sentence outside the aggravated range recommended by the Sentencing
Guidelines, without sufficient justification, and a claim that the court imposed
a sentence within the aggravated range, in the absence of a statement
reasons for such, raises a substantial question. See, e.g., Commonwealth
v. McLaine, 150 A.3d 70, 76 (Pa. Super. 2016); Commonwealth v. Griffin,
804 A.2d 1, 8 (Pa. Super. 2002). Therefore, Appellant has raised two
substantial questions, and we will address the merits of those claims.
Our standard of review for a challenge to the discretionary aspects of a
sentence is well settled:
Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Reid, 323 A.3d 26, 30–31 (Pa. Super. 2024) (quoting
Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation
omitted)). The rationale for the broad discretion and deference in this standard
is that the sentencing court is “in the best position to determine the proper
penalty for a particular offense based upon an evaluation of the individual
circumstances before it.” Commonwealth v. Walls, 926 A.2d 957, 961 (Pa.
2007) (quoting Commonwealth v. Ward, 568 A.2d 1242, 1243 (Pa. 1990)).
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When we conduct the merits analysis of a challenge to the discretionary
aspects of a sentence, we are guided by the statutory requirements of 42
Pa.C.S. § 9781(c) and (d). See Commonwealth v. Zeigler, 112 A.3d 656,
661 (Pa. Super. 2015).
Here, Subsections 9781(c)(2)-(3) apply, as the trial court sentenced
Appellant at the top of the aggravated range for burglary and outside of the
Sentencing Guidelines’ recommended range for stalking, and he contends that
both departures from the recommended standard guideline ranges were
clearly unreasonable. See 42 Pa.C.S. § 9781(c)(2)-(3). In reviewing the
record, this Court considers: “(1) [t]he nature and circumstances of the
offense and the history and characteristics of the defendant[;] (2) [t]he
opportunity of the sentencing court to observe the defendant, including any
presentence investigation[;] (3) [t]he findings upon which the sentence was
based[; and] (4) [t]he guidelines promulgated by the commission. 42 Pa.C.S.
§ 9781(d).
A sentence is unreasonable if it was imposed “without express or implicit
consideration” of the requirements outlined in Section 9721(b). Walls, 926
A.2d at 964; 42 Pa.C.S. § 9721(b). In imposing a sentence, the sentencing
court shall consider, inter alia, “the protection of the public, the gravity of the
offense as it relates to the impact on the life of the victim and on the
community, and the rehabilitative needs of the defendant.” 42 Pa.C.S. §
9721(b). Further, the sentencing court is required to consider the
circumstances of the offense and the character of the defendant, paying
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particular attention to the defendant’s prior criminal record, age, personal
characteristics, and potential for rehabilitation. See Commonwealth v.
Torres, 303 A.3d 1058, 1065 (Pa. Super. 2023) (citing Commonwealth v.
Griffin, 804 A.2d 1, 10 (Pa. Super. 2002)).
Although they must be considered, the Pennsylvania Sentencing
Guidelines are not mandatory, and thus do not prohibit any sentence
otherwise within the statutory maximum. See Commonwealth v. Sheller,
961 A.2d 187, 190 (Pa. Super. 2008); Commonwealth v. Mitchell, 883 A.2d
1096, 1107 (Pa. Super. 2005). “The requirement that the court provide a
contemporaneous written statement is satisfied when the judge states his
reasons for the sentence on the record and in the defendant’s presence.”
Commonwealth v. Durazo, 210 A.3d 316, 321 (Pa. Super. 2019) (quotation
marks and citation omitted). Finally, where the trial court had the benefit of a
PSI, we can assume the trial court “was aware of relevant information
regarding the defendant’s character and weighed those considerations along
with mitigating statutory factors.” Commonwealth v. Devers, 546 A.2d 12,
18 (Pa. 1988).
Appellant argues that the sentencing factors under Section 9721(b) did
not justify the trial court’s departure from the sentencing guidelines. See
Appellant’s Brief at 21. In fact, he notes that he had no prior arrests or criminal
charges and only needed rehabilitation. See id. He asserts that the trial court
relied on the nature of his offenses and impact of the victim, which was not
compelling enough to justify an aggravated-range sentence and a sentence
- 18 - J-S30031-25
substantially outside of the guidelines. See id. Additionally, Appellant asserts
that the facts of this case do not support his charges of stalking and burglary,
which has no merit as explained above. See id. at 22.
Upon review of the record, we find the sentencing court’s consideration
of the pertinent statutory factors pursuant to Section 9721(b) is evident from
the sentencing hearing record. The sentencing court offered the following
statement of reasons for the imposed imprisonment terms:
The [c]ourt has reviewed the PSI and all of its attachments, has listened to counsel’s arguments and reviewed the victim impact statement.
Before the [c]ourt is a 26-year-old male with some yellow flags, I’ll say, regarding his mental health, meaning he had been hospitalized twice in [the] Dominican Republic and once in Columbia. The details of those hospitalizations are somewhat explained in the PSI.
He has no criminal record. However, the[] facts in this [] case is of particular concern to this [c]ourt. The victim here was a total stranger, a newscaster who was popular in this community. He became fixated on her, broke into her building. And, thank goodness, she was out of the state at the time because who knows what his true intent was that day.
He attempted to communicate with her through various social media attempts. And this particular woman was terrified. And so the recommendation here, the [c]ourt feels, is inappropriate given the serious nature of this offense. The [c]ourt will be sentencing in the aggravated range of sentence for the following reasons:
One, the serious nature of the offense as stated already, the facts; two, the tremendous impact to the victim. And I say that because, when she testified, which was back in January, beginning of January, she took the stand[,] and she stated that she was incredibly fearful. She had the means to be able to move out of that apartment, but it still was a tremendous hindrance on someone to have to physically move because of their fear. She
- 19 - J-S30031-25
constantly looks over her shoulder. She has nightmares and says that she’s not safe anywhere, she doesn’t feel safe anywhere.
Fast-forward to six weeks later. That fear and that terror continues. In her letter, she says that –[] this experience has left her with deep emotional and psychological scars and that the fear, the anxiety, and the sense of vulnerability has affected every aspect of her life. And, thus, this trauma continues forward and seems to have permanently scarred her emotionally.
Third, [Appellant] continues to exhibit aggressive behavior. His misconduct, as detailed in the PSI, was for aggravated assault, resisting and refusing an order and disruption. He spent 22 days in disciplinary segregation. And in the detail of the actual offense, it was assault, which, even when given orders to cease fighting, [Appellant] had to be physically separated by staff members in the jail.
And so[,] what we have here is the [c]ourt feeling that this is an individual who’s unmedicated, unhinged[,] and of concern to this community.
N.T. Sentencing Hearing, 3/6/25, at 8-10.
The record reflects that the trial court considered all the relevant factors
for Appellant’s sentence. See Commonwealth v. Mouzon, 812 A.2d 617,
620-621 (Pa. Super. 2002) (“In every case in which the court imposes a
sentence for a felony or a misdemeanor, the court shall make as a part of the
record and disclose in open court at the time of sentencing, a statement of
the reason or reasons for the sentence imposed.”). The trial court also had
the benefit of the PSI. See Devers, supra. The court did not merely double-
count factors already considered by the Sentence Guidelines’
recommendations. It carefully considered how the facts presented required
substantial imprisonment to protect the public, address Appellant’s
rehabilitative needs, and address the tremendous negative impact that he
- 20 - J-S30031-25
caused to the victim. Appellant’s assertion that the trial court failed to look at
mitigating factors such as his lack of criminal history and his rehabilitative
needs is meritless. Essentially, Appellant’s claim is asking us to reweigh his
sentencing factors, which we will not do. See Commonwealth v. Verma,
334 A.3d 941, 947 (Pa. Super. 2025) (we “cannot reweigh sentencing factors
and impose judgment in place of [the] sentencing court” where the sentencing
court “was fully aware of all mitigating factors”) (citation omitted). We find no
abuse of discretion by the sentencing court. Reid, supra. Accordingly,
Appellant is not entitled to relief.
Judgment of sentence affirmed.
Date: 12/31/2025
- 21 - IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA Filed CRIMINAL DIVISION 4/10/2025 3:19 PM Clerk of Judicial Records Lehigh County. PA COMMONWEALTH OF PENNSYLVANIA
vs. ) Case No. 2512/2024
WILMER ORTEGA FRANCO, Defendant
ORDER
NOW, this j(j^day of / , 2025, it appearing that the
Defendant has filed a Notice of Appeal in the above-captioned matter; and it
further appearing that the accompanying Memorandum Opinion satisfies the
requirements of Pa. R.A.P. 1925(a)
IT IS HEREBY ORDERED that the Clerk of Courts - Criminal
transmit the record in the above-captioned matter to the Superior Court
forthwith.
BY THE COURT:
X; Anna-Kristie M. Marks, J. IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA Filed CRIMINAL DIVISION 4/10/2025 3:19 PM Clerk of Judicial Records COMMONWEALTH OF PENNSYLVANIA Lehigh County. PA
WILMER ORTEGA FRANCO, Defendant ******** APPEARANCES:
MICHAEL EDWARDS, ESQUIRE, CHIEF DEPUTY DISTRICT ATTORNEY, On behalf of the Commonwealth
MATTHEW MOTTOLA, ESQUIRE, On behalf of Defendant ********
OPINION
ANNA-KRISTIE M. MARKS. J.
Defendant, Wilmer Ortega Franco, has filed an appeal from this
Court’s Order of March 20, 2025, which denied the Defendant’s Post Sentence
Motions. Accordingly, we are issuing this Opinion pursuant to the provisions of
Pennsylvania Rule of Appellate Procedure 1925.
The relevant facts are as follows: After a nonjury trial conducted on
January 8, 2025, the Defendant was found guilty of Criminal Trespass,1 Burglary,2
and Stalking.3 Thereafter, on March 6, 2025, this Court sentenced the Defendant to
the following: on the charge of Burglary, a term of imprisonment in a state
correctional facility of not less than seven (7) months nor more than five (5) years;
on the charge of Stalking, a term of imprisonment in a state correctional facility of
i 35 P.S. § 3503(a)(l)(i). 2 35 P.S. § 3502(a)(4). 3 35 P.S. § 2709.1(a)(1). not less than twenty (20) months nor more than five (5) years. No further sentence
was imposed on the charge of Criminal Trespass. The sentences were ordered to
run consecutively to each other. The aggregate sentence imposed was not less than
twenty-seven (27) months nor more than ten (10) years. On or about March 11,
2025, the Defendant filed Post Sentence Motion Pursuant to Pennsylvania Rule of
Criminal Procedure Rule 720 that this Court denied on March 20, 2025. The
within appeal followed on or about March 31, 2025.
On April 1, 2025, this Court instructed the Defendant to file of
record and serve upon this Court a concise statement of errors complained of
on appeal no later than April 22, 2025, in accordance with Pennsylvania Rule of
Appellate Procedure 1925(b). The Defendant timely complied with said Order.
Within the Defendant’s concise statement of errors complained of on appeal, he
raises the issue of whether 18 Pa. C.S.A. § 3502(d) required this Court’s
sentence for Stalking to merge with its sentence for Burglary, as well as raises a
challenge to this Court’s sentence. These issues have been addressed by this
Court’s Opinion denying the Defendant’s Post Sentence Motions of March 20,
2025. Consequently, this Court relies on said Opinion of March 20, 2025, and
incorporates it herein.
In addition, within the Defendant’s concise statement of errors
complained of on appeal, he challenges the sufficiency of the evidence, This
argument is without merit.
The Defendant argues that the verdict was not supported by
sufficient evidence. A claim challenging the sufficiency of the evidence is a
question of law which asserts that there is insufficient evidence to support at
least one material element of the crime for which the Defendant was convicted.
2 Commonwealth v. Lyons. 833 A.2d 245, 258 (Pa. Super. 2003). The standard
for reviewing sufficiency challenges was explained in the following manner by
the Superior Court of Pennsylvania:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt.
Commonwealth v. Taylor. 831 A.2d 661, 663 (Pa. Super. 2003), quoting
Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001). In addition,
the facts and circumstances established by the Commonwealth need not
preclude every possibility of innocence. Commonwealth v. Hunzer, 868 A.2d
498, 505 (Pa. Super. 2005). Any doubts regarding a defendant’s guilt are
properly resolved by the finder of fact unless the evidence is so weak and
inconclusive that, as a matter of law, no probability of fact may be drawn from
the combined circumstances. Id. Finally, the trier of fact, while passing upon
the credibility of witnesses and the weight of the evidence produced, is free to
believe all, part or none of the evidence. Id. If the finder of fact reasonably
could have determined from the evidence adduced that all of the necessary
elements of the crime were established, then the evidence will be deemed
sufficient to support the verdict. Id. at 506.
This Court notes that a person is guilty of Criminal Trespass “if,
knowing that he is not licensed or privileged to do so, he enters, gains entry by
subterfuge or surreptitiously remains in any building or occupied structure or
separately secured or occupied portion thereof.” 18 Pa. C.S.A. § 3503(a)(l)(i).
Additionally, a person commits the offense of Burglary if, with the intent to
3 commit a crime therein, the person enters a building or occupied structure, or
separately secured or occupied portion thereof that is not adapted for overnight
accommodations in which at the time of the offense no person is present.” 18 Pa.
C.S.A. § 3502(a)(4). Finally, “a person commits the crime of stalking when the
person engages in a course of conduct or repeatedly commits acts toward another
person, including following the person without proper authority, under
circumstances which demonstrate either an intent to place such other person in
reasonable fear of bodily injury or to cause substantial emotional distress to such
other person.” 18 Pa. C.S.A. § 2709.1(a)(1).
In the instant case, the evidence established that Blakely McHugh
was employed by WFMZ as a morning reporter since December of 2022. She
resided at City Place Apartments located at 902 West Hamilton Street,
Apartment 706, Allentown, Lehigh County, Pennsylvania. This apartment
complex is not open to the public and has three (3) exterior doors, all of which
require a key/scan card to enter. The exterior doors lead to a main lobby area
that features a seating area, front desk, elevators, and mail room. In order for a
visitor to gain access into the secured building, the visitor must request access
from the resident. Specifically, the visitor needs to search the name of the
resident in an electronic directory intercom system located at two (2) of the
exterior doors to the apartment complex. Upon electronically notifying the
resident of the guest’s presence at the exterior door by the guest pressing the
button coinciding with the name and apartment number of the resident, the
intercom system takes a photograph of the guest. Upon receiving this
electronic request, the resident can “buzz” the guest in or simply deny access.
4 If a resident denies access, the guest is able to leave an electronic message for
the resident.
On April 26, 2024, Ms. McHugh went to California to tend to
personal/family matters and remained there until the first week of June 2024.
On April 27, 2024, at 3:38 P.M., while Ms. McHugh was in California, she
received a request on her phone from an individual, later identified as the
Defendant, Wilmer Ortega Franco, wanting to gain access to the building. (C.
Ex. 1); (C. Ex. 2). Not knowing the individual, Ms. McHugh denied this person
access. (C. Ex. 2). At 3:41 P.M., Ms. McHugh then received an electronic
message from this person stating, “be a good friend.” Then, at 3:42 P.M., the
same individual sent another message which included the email address of
“benitoortegaSO^cloud-Com.” (C. Ex. 3). Later that day at 5:42 P.M., Ms.
McHugh received another request to gain access to her building. (C. Ex. 4).
Once, again, Ms. McHugh denied access to this person. Upon receiving this
second request, Ms. McHugh grew concerned and contacted City Place
Apartment security to advise them of the situation. Security assured Ms.
McHugh that they would look into the matter.
Thereafter, on the morning of April 29, 2024, Ms. McHugh
received an email from David Herrington, WFMZ’s IT technician and digital
media developer, indicating that WFMZ had a concern about communication
that was being submitted to their website/app. (C. Ex. 6); (C. Ex. 7); (C. Ex. 8);
(C. Ex. 9); (C. Ex. 10); (C. Ex. 11); (C. Ex. 12); (C. Ex. 13); (C. Ex. 14); (C. Ex.
15); (C. Ex. 16); (C. Ex. 17); (C. Ex. 18); (C. Ex. 19); (C. Ex. 20); (C. Ex. 21); (C.
Ex. 22); (C. Ex. 23); (C. Ex. 24); (C. Ex. 25); (C. Ex. 26); (C. Ex. 27). Specifically,
they had received, inter alia, a photograph of Ms. McHugh’s apartment door by
5 which she has a pig statue. (C. Ex. 26). Mr. Herrington previously had been to
Ms. McHugh’s apartment and recognized the pig statue. The comment
associated with the post was “quiero concerla por favooooorrrrrr, I’m going to
the army.” (C. Ex. 26). All of the posts submitted to WFMZ between April 1
2024 and April 29, 2024 had listed “Wil” or “Wilmer” as the name of the person
who uploaded the images, along with the email address of
francowilmer6@gmail.com. (C. Ex. 6); (C. Ex. 7); (C. Ex. 8); (C. Ex. 9); (C. Ex.
10); (C. Ex. 11); (C. Ex. 12); (C. Ex. 13); (C. Ex. 14); (C. Ex. 15); (C. Ex. 16); (C.
Ex. 17); (C. Ex. 18); (C. Ex. 19); (C. Ex. 20); (C. Ex. 21); (C. Ex. 22); (C. Ex. 23);
(C. Ex. 24); (C. Ex. 25); (C. Ex. 26). However, on April 30, 2024, an uploaded
image of a text exchange with “Jacky,” which was consistent with the other
screenshots of text conversations with “Jacky,” listed ubereatsl330@gmail.com
as the email address and “Mr. Foodie” as the person who uploaded the image.
(C. Ex. 27); (C. Ex. 11); (C. Ex. 12); (C. Ex. 13); (0. Ex. 22); (C. Ex. 24); (C. Ex.
25). Many of the uploaded images included contact information such as an
address of 242 E. Mosser Street (C. Ex. 14); (C. Ex. 16); (C. Ex. 17); (C. Ex. 18),
a last name of “Ortega” (C. Ex. 6); (C. Ex. 7); (C. Ex. 8); (C. Ex. 14); (C. Ex. 15);
(C. Ex. 16); (C. Ex. 17); (C. Ex. 18); (C. Ex. 19); (C. Ex. 20); (C. Ex. 21), a
telephone number of 484-408-2477 (C. Ex. 6); (C. Ex. 9); (C. Ex. 14), and Titles
of “Playita Little Bitch” (C. Ex. 17); (C. Ex. 18); (C. Ex. 19); (C. Ex. 20) or “I
want my BM” (C. Ex. 25); (C. Ex. 26). Based on these concerning
communications received by WFMZ, Mr. Herrington notified the News Director,
who in turn contacted the police.
Later that day at 2:57 P.M., but before WFMZ had an opportunity
to file a police report, Ms. McHugh received another electronic notification that
6 the same person was requesting access to her building. (C. Ex. 5). Ms. McHugh
rejected the call and notified the Allentown Police Department of the situation.
(C. Ex. 5). Officer Pablo Vazquez of the Allentown Police Department was
dispatched to City Place Apartments, 902 W. Hamilton Street, Allentown, for an
unwanted person. He was provided with a physical description of the suspect
based on the photograph that was taken by City Place Apartment’s electronic
intercom system (blue floral shirt, jeans, and medallion necklace), as well as the
name of “Wilmer” by Ms. McHugh. (C. Ex. 5). Officer Vazquez, along with
Officer Keegan Connelly, checked all floors of the apartment complex and did
not encounter anyone who fit the description. However, when Officers Vazquez
and Connelly responded to a possible disturbance two (2) blocks away at Sports
and Social Allentown, 645 Hamilton Street, Officer Vazquez encountered the
suspect sitting alone in a booth in the sports bar. Consistent with the
description provided, the suspect was wearing a blue floral shirt and jeans and
had a silver medallion necklace of the Mercedes symbol around his neck.
Officer Vazquez approached him and asked him for his identification. The
suspect was identified through his identification as the Defendant, Wilmer
Ortega Franco, residing at 242 E. Mosser Street, Allentown. Officer Vazquez
advised the Defendant not to return to the apartment complex and that he
would be arrested if he returned. The Defendant indicated his understanding
and assured Officer Vazquez that he would not return to the apartment
building.
Shortly thereafter, at 3:58 P.M., Ms. McHugh received a Facebook
message saying, “You got me on [sic] trouble.” (C. Ex. 30). Upon checking her
Facebook messages, Ms. McHugh saw that she had received a message from
7 “Wilmer Ortega Franco” earlier that day at 8:24 A.M. Specifically, Wilmer
Ortega Franco had sent her a photograph of her front door with the pig statue
by the door jamb; the same concerning photograph that WFMZ had received.
(C. Ex. 30); (C. Ex. 26). In fact, he had added music to the photograph in order
to turn it into a video. (C. Ex. 29); (C. Ex. 30). Under the photograph, he
posted, “I want [sic] show u the real life, we don’t need a million.” (C. Ex. 29);
(C. Ex. 30). Another Facebook post at 9:32 A.M. commented, “We are living in a
simulation ... I’m the emulator ... And Neo want a new Kingdom.” (C. Ex. 30).
Ms. McHugh also noted that on April 26, 2024 at 1:58 A.M., Wilmer Ortega
Franco posted “The most beautiful journalist” and then at 2:02 P.M., “Wait for
me, just 1 more month.” (C. Ex. 28).
In addition, under the name “Wil” and the handle
“_theyhatethisnigga,” Ms. McHugh received numerous comments and replies to
her Instagram posts. (C. Ex. 31); (C. Ex. 32); (C. Ex. 33); (C. Ex. 34); (C. Ex.
35); (C. Ex. 36). Indeed, on or about April 18, 2024, Ms. McHugh had blocked
this account because she found the quality and quantity of comments that she
received to be alarming. Ms. McHugh believes that the Defendant then made a
new Instagram account under the handle “psycObvnny” with the name of
"Benito Ortega” in order to continue to view her posts and comment. (C. Ex. 41).
Overall, all of the communications and attempts at communications made Ms.
McHugh very fearful and caused her emotional distress. Indeed, Ms. McHugh
had nightmares while she was in California and she felt very unsafe.
In addition, on April 29, 2024, at approximately 3:00 P.M., Officer
Jeramy DeVaul of the Allentown Police Department was working the desk at
headquarters when Sergeant Joshua Brubaker advised him that WFMZ had
8 called with regard to making a police report on Ms. McHugh’s behalf. Sergeant
Brubaker explained to Officer DeVaul that Ms. McHugh would be calling to
personally make the report. At approximately 3:40 P.M., Officer DeVaul
received the awaited telephone call from Ms. McHugh. When speaking with
Officer DeVaul, she appeared to be very concerned and afraid over the
circumstances in which she found herself. Charges were approved at 8:30 P.M.
on April 29, 2024. The Defendant was arrested on April 30, 2024 and released
on bail.
On May 1, 2024, the Defendant entered the headquarters of the
Allentown Police Department with regard to a car accident in which he was
involved. When the Defendant identified himself as Wilmer Franco, Officer
DeVaul recognized his name and inquired of his sergeant if he could interview
the Defendant. After receiving permission, Officer DeVaul asked the Defendant
if he would be willing to talk to him about what he had been arrested for and
advised the Defendant that he could refuse to speak with him. The Defendant
indicated that he would talk with Officer DeVaul. Consequently, Officer DeVaul
escorted the Defendant to a nearby interview room. The conversation was
recorded and the Defendant was again advised that he was free to leave at any
time. (C. Ex. 37). The Defendant informed Officer DeVaul that his email
address was Francowilmer6@gmail.com and he lived at 242 East Mosser Street,
Allentown. He also provided a phone number of 484-408-2477 and an
Instagram account under the username of Jdieyhatethisnigga. (C. Ex. 37). The
Defendant admitted to sending Ms. McHugh the Facebook message on April 26,
2024 which commented, “The most beautiful journalist.” (C. Ex. 28). However,
the Defendant denied sending any other Facebook messages to her and
9 indicated that his laptop had been stolen and that he had been having issues
with his identity being fraudulently used. Indeed, while the Defendant also
admitted that the text exchanges depicted in many of the screenshots uploaded
to WFMZ were between him and a friend named Jacky, he denied having
uploaded them to WFMZ. (0. Ex. 27); (C. Ex. 11); (C. Ex. 12); (C. Ex. 13); (C.
Ex. 22); (C. Ex. 24); (C. Ex. 25). Similarly, the Defendant admitted seeing the
photograph of Ms. McHugh’s apartment door with the pig statue in his iCloud
account, but denied sending it to anyone. (C. Ex. 26). When the Defendant
was shown the photographs taken by City Place Apartment’s intercom system,
the Defendant stated, “It looks like me.” (C. Ex. 1); (C. Ex. 2); (C. Ex. 3); (C. Ex.
4); (C. Ex. 5). Additionally, the Defendant indicated that he never got into the
building, although he would have liked to. Also, the Defendant admitted to
Officer DeVaul that Jheyhatethisnigga is his username for Instagram and that
psycObvnny was a newer Instagram account that he had created. (C. Ex. 31);
(C. Ex. 32); (C. Ex. 33); (C. Ex. 34); (C. Ex. 35); (C. Ex. 36); (C. Ex. 40); (C. Ex.
41).
The Defendant testified at trial that his laptop had been stolen
and that his identity had been fraudulently used, While the Defendant
admitted to commenting on Ms. McHugh’s stories on Instagram and posting the
first post on Facebook, the Defendant denied any other electronic
communication with Ms. McHugh. Indeed, the Defendant indicated that he
watched the WFMZ morning show, but denied sending any of the photographs
or messages to their website/app. The Defendant also stated that prior to his
arrest he did not know where Ms. McHugh lived and that he had never been to
her apartment despite photographic evidence undermining this assertion. (C.
10 Ex. 1); (C. Ex. 2); (C. Ex. 3); (C. Ex. 4); (C. Ex. 5). The Defendant also
contradicted Officer Vazquez’s testimony and testified that Officer Vazquez
approached him in Sports and Social Allentown on April 29, 2024 with regard
to a stolen bicycle, not an unwanted person at the City Place Apartments. This
Court found the Defendant’s testimony to be contrary to the evidence and not
credible.
Viewing all the evidence and all reasonable inferences arising
therefrom in the light most favorable to the Commonwealth, it is clear that the
evidence was sufficient to enable a finder of fact to conclude that all the elements
of the offenses were established. Indeed, at the conclusion of the non-jury trial,
this Court had no doubt that the Defendant, knowing that he was not licensed or
privileged to do so, gained entry into Ms. McHugh’s apartment building without
permission, license, or privilege and repeatedly requested access to her home.
Furthermore, this Court had not doubt that the Defendant entered the apartment
building with the intent to commit a crime therein. Indeed, the evidence
established that the Defendant engaged in a course of conduct, through repeated
acts and communication, which demonstrated either an intent to place Ms.
McHugh in reasonable fear of bodily injury or to cause her substantial emotional
distress. In light of the abundant evidence enumerated above, any challenge to
the sufficiency of the evidence must fail.
Accordingly, the Defendant’s appeal should be dismissed.
DATED: BY THE COURT:
Anna-Kristie M. Marks, J.
11 4/10/2025 Email - DA, Attorney Mottola