Com. v. Raspaldo, J.

• Court: Superior Court of Pennsylvania
• Decided: March 20, 2025
• Docket: 3182 EDA 2023
• Status: Unpublished

Opinion

J-S04007-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JULIEN V. RASPALDO : : Appellant : No. 3182 EDA 2023

Appeal from the Judgment of Sentence Entered June 1, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005229-2019

BEFORE: OLSON, J., STABILE, J., and FORD ELLIOTT, P.J.E. *

MEMORANDUM BY OLSON, J.: FILED MARCH 20, 2025

Appellant, Julien V. Raspaldo, appeals from the judgment of sentence

entered on June 1, 2023, following his bench trial convictions for unlawful

contact with a minor – open lewdness, corruption of minors, indecent

exposure, simple assault, open lewdness, endangering the welfare of a child,

indecent assault without consent, and indecent assault – person less than 16

years of age.1 We affirm.

The trial court summarized the facts of this case as follows:

The victim in this case, [a female] (hereinafter “Victim”) was born on May 4, 2003, and ranged from ages 13 to 16 during the relevant time. Meanwhile, Appellant was born October 6, 199[1], and ranged from ages 26 to 29 during the same period. Appellant ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 6318(a)(2), 6301(a)(1)(ii), 3127(a), 2701(a), 5901, 4304(a)(1), 3126(a)(1), and 3126(a)(8). The trial court found Appellant not guilty of harassment and two counts of indecent assault. J-S04007-25

is [] Victim’s uncle. Appellant lived with [] Victim’s grandparents, where Victim visited on a regular basis as she lived across the street.

During the trial, [] Victim recounted a series of actions that Appellant took against her [over the course of years]. One time when she slept over at her grandmother’s house she woke up and Appellant was sitting on the bed where [she] was sleeping and he had pulled down her blanket. She explained that Appellant had his hands in his pants and he was masturbating. On another occasion, [] Victim was playing a video game with Appellant when he walked in front of [her] and exposed his penis to [her]. In this instance, Appellant’s penis was erect and he was jiggling it around in front of [her] face.

[] Appellant’s actions toward [] Victim included both physical and overtly sexual behavior. [] Victim explained that [] Appellant smacked [her] butt[ocks] more than one time. [] Appellant [] grope[d] Victim’s breasts [] five or six times. [] Victim explained that [] Appellant would use his fingers [to touch her] areola or he would squeeze [her] breast on the outside of [her] bra. One time he additionally pushed up against [] Victim with his penis pressed up against her butt[ocks]. Similarly, Appellant once pressed his penis against Victim’s back on an occasion when he was helping [her] with schoolwork. [] Victim did not consent to any of the times that [] Appellant inappropriately touched her/and or approached the minor child victim. More specifically, [] Appellant said inappropriate words like “sexagon” while [] Victim was doing schoolwork and [used] similarly sexually charged words complimenting [] Victim’s appearance [and] would tell [] Victim that her breasts were “nice” or “big.” On one occasion, while in a parked car together [with] Victim, [] Appellant start[ed] watching pornography on his [cellular tele]phone while touching his penis.

Trial Court Opinion, 2/28/2024, at 2-3 (record citations and some quotations

omitted).

Following a bench trial on April 4, 2023, the trial court found Appellant

guilty of the aforementioned crimes. On June 1, 2023, the trial court imposed

an aggregate sentence of three to six years of incarceration followed by nine

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years of probation. More specifically, the trial court sentenced Appellant to

three to six years of incarceration followed by one year of probation for

unlawful contact with a minor. The trial court further sentenced Appellant to

consecutive sentences of five years of probation for corruption of a minor and

three years of probation for endangering the welfare of a child. 2 Appellant

filed a timely post-sentence motion on June 1, 2023, which was denied by

operation of law by order entered on December 6, 2023. This timely appeal

resulted.3

On appeal, Appellant presents the following issues for our review: ____________________________________________

2 The sentences for the five remaining misdemeanor convictions merged. Moreover, we note that Appellant was also determined to be a sexually violent predator and ordered to register as a tier II offender for a period of 25 years. See N.T., 6/1/2023, at 83-86; see also 42 Pa.C.S.A. § 9799.15(a)(2). Appellant does not challenge those determinations on appeal.

3 Appellant’s post-sentence motion should have been deemed denied on September 29, 2023, 120 days after it was filed. See Pa.R.Crim.P. 720(B)(3)(a) and (B)(3)(c) (“[T]he judge shall decide the post-sentence motion, including any supplemental motion, within 120 days of the filing of the motion or the motion shall be deemed denied by operation of law” and the clerk of courts is directed “to enter an order on behalf of the court.”); see also Commonwealth v. Braykovch, 664 A.2d 133 (Pa. Super. 1995) (a court breakdown occurs when the trial court clerk fails to enter an order deeming post-sentence motions denied by operation of law). Thereafter, on December 5, 2023, Appellant filed a premature, counseled notice of appeal which was made timely by the entry of an order on December 6, 2023 that denied Appellant’s post-sentence motion. See Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the day thereof.”). On December 11, 2023, the trial court entered an order directing Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely on January 1, 2024. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on February 28, 2024.

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A. Was the evidence insufficient to support [Appellant’s] conviction[s] on all counts?

B. [Were Appellant’s] convictions [] against the weight of the evidence?

C. Did the [trial] court abuse its discretion and violate the Sentencing Code by sentencing [A]ppellant to a manifestly excessive sentence, where this sentence far surpassed what was required to protect the public and account [for A]ppellant’s demonstration of remorse, his rehabilitate needs, mitigating circumstances, and the sentencing guidelines?

Appellant’s Brief at 3-4.

In his first issue presented, Appellant argues that the evidence

presented at trial was insufficient to support all of his convictions. Id. at

11-13. Appellant argues that Victim’s testimony was inconsistent, unreliable,

and uncorroborated and that she failed to make a prompt complaint, thus

raising issues pertaining to her credibility. Id. at 7-8. In contrast, Appellant

posits that he provided unrefuted evidence of his good character, and he

testified at trial and denied the allegations. Id. at 8. As such, Appellant

asserts that “the trial court relied solely on the inconsistent and unreliable

testimony and allegations of [Victim] over the testimony of [Appellant] and

[Appellant’s] reputation for good character.” Id. at 11.

Initially, we note that Appellant failed to preserve his sufficiency claim

because he did not specify the crimes or the elements of the crimes upon

which the evidence was allegedly insufficient within his Rule 1925(b)

statement, and, thus, we find the issue waived. See Commonwealth v.

Tyack, 128 A.3d 254, 260 (Pa. Super. 2015) (citation omitted) (Rule 1925(b)

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statement failed to “specify the element or elements upon which the evidence

was insufficient” to support Tyack’s conviction and his sufficiency of the

evidence claim was waived on appeal).

Regardless, our standard of review is as follows:

The standard we apply in reviewing the sufficiency of 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 that of the fact-finder. In 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 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.

Commonwealth v. Anderson, 299 A.3d 894 (Pa. Super. 2023) (citation

omitted). Alleged variances in testimony go to the credibility of the witnesses

and not the sufficiency of the evidence. See Commonwealth v. Johnson,

180 A.3d 474, 478 (Pa. Super. 2018). “It is well-settled that even the

uncorroborated testimony of a single witness may alone be sufficient to

convict a defendant.” Commonwealth v. Gilliam, 249 A.3d 257, 268 (Pa.

Super. 2021) (internal quotation and citation omitted).

In this case, regarding sufficiency, the trial court determined:

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Over a period of spanning three years, Appellant smacked [] Victim on the butt, groped her breasts, made statements of a sexual nature towards her, put his erect penis against her, jiggled his penis in front of her face, watched pornography in Victim’s presence, and masturbated in front of her, all without her consent and while she was a minor and [] Appellant was approximately 13 years older than her. The trial court fully believed [] Victim and, accordingly, the record fully supports all three of the [felony convictions] and all five of the misdemeanors [for] which [] Appellant was found guilty.

Trial Court Opinion, 2/28/2024, at 8.

Upon review, we discern no error or abuse of discretion in the trial

court’s ruling on Appellant’s sufficiency argument. At trial, Victim testified

that, over the course of years, Appellant smacked her buttocks, groped her

breasts, made sexually suggestive comments, put his erect penis against her

back and in front of her face, and masturbated while watching pornography in

her presence. The trial court was free to determine Victim’s credibility,

variances in her testimony, and to believe all, part, or none of the evidence

presented. Here, the trial court “fully” believed Victim and we will not usurp

that determination. Moreover, we summarily reject Appellant’s suggestion

that Victim’s testimony required corroboration. See Gilliam. Finally, there

is no dispute that Victim was a minor at the time of the crimes and that

Appellant is 13 years older than her. Upon our review, the Commonwealth

introduced sufficient evidence to support Appellant’s convictions. As such,

despite waiving the issue for lack of specificity, Appellant’s challenge to the

sufficiency of the evidence lacks merit.

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Next, Appellant argues that the verdict was against the weight of the

evidence presented at trial. Appellant’s Brief at 13-20. Appellant’s weight

argument largely mirrors his sufficiency claim. More specifically, Appellant

argues that “evidence of [his] good character and his testimony” as presented

at trial “should be weighed … against all other evidence.” Id. at 14. Appellant

again argues that Victim’s testimony was inconsistent and unreliable, there

was no corroborative evidence presented, and Victim failed to make a prompt

complaint. Id. at 14-20.

An appellate court's standard of review when presented with a weight

of the evidence claim is distinct from the standard of review applied by the

trial court:

Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice. This does not mean that the exercise of discretion by the trial court in granting or denying a motion for a new trial based on a challenge to the weight of the evidence is unfettered.

In describing the limits of a trial court's discretion, we have explained:

The term “discretion” imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed

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to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused where the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill-will.

Commonwealth v. Soto, 202 A.3d 80, 97 (Pa. Super. 2018) (citation

omitted). “[W]e may not [re-]weigh the evidence and substitute our

judgment for the fact-finder.” Id. at 93 (citation omitted). “For an appellant

to prevail on a challenge to the weight of evidence, he must establish that the

evidence was so tenuous, vague, and uncertain that the verdict shocks the

conscience of the court.” Gilliam, 249 A.3d at 269–270 (internal quotation

and citation omitted).

Here, the trial court determined that when viewing the totality of the

evidence presented, “there [was] nothing about Appellant’s convictions that

should shock any reasonable person’s sense of justice.” Trial Court Opinion,

2/28/2024, at 8. Upon our review of the record and applicable law, we agree

with the conclusion that the verdict did not shock the conscious of the court

so as to warrant relief on Appellant’s weight of the evidence claim. As

previously stated, the trial court was free to believe all, part, or none of the

evidence to determine Victim’s credibility and variances in her testimony.

Appellant has not established that the evidence was so shockingly tenuous,

vague, and/or uncertain and we simply may not reweigh the evidence or

substitute our judgment for the trial court. Based upon the facts of record,

we discern no abuse of discretion or error of law by the trial court in denying

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Appellant’s weight claim. For all of the foregoing reasons, Appellant is not

entitled to relief on his second issue.

Next, Appellant challenges the discretionary aspects of sentencing,

arguing that “[t]his matter should be remanded for [re]sentencing because

the [trial] court’s consecutive sentences [were] manifestly excessive and

inconsistent with protecting the public, the rehabilitative needs of [Appellant],

and the sentence disproportionately punishe[d]” him. Appellant’s Brief at 12.

Appellant asserts that the trial court erred by “impos[ing] consecutive

sentences above the guidelines on the three (3) lead felonies[.]” Id. at 21

(footnote omitted). Appellant contends that the trial court also failed to

consider his need and amenability to rehabilitation or “unrefuted” evidence of

his “good character.” Id. at 23. As such, Appellant argues he received an

excessive sentence, and he is entitled to resentencing. Id.

Appellant's claim challenges the discretionary aspects of his sentence.

See Commonwealth v. Lee, 876 A.2d 408 (Pa. Super. 2005) (claim that the

trial court erred in imposing an excessive sentence is a challenge to the

discretionary aspects of a sentence); see also Commonwealth v.

Gonzalez–Dejusus, 994 A.2d 595 (Pa. Super. 2010) (claim that the trial

court erred in imposing consecutive sentences is a challenge to the

discretionary aspects of a sentence). With respect to our standard of review,

we have held that “sentencing is a matter vested in the sound discretion of

the sentencing judge, whose judgment will not be disturbed absent an abuse

of discretion.” Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super.

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2001). Moreover, pursuant to statute, Appellant does not have an automatic

right to appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A.

§ 9781(b). Instead, Appellant must petition this Court for permission to appeal

the discretionary aspects of his sentence. Id.

This Court has previously explained:

It is well-settled that “the right to appeal a discretionary aspect of sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011). Rather, where an appellant challenges the discretionary aspects of a sentence, we should regard his[, or her,] appeal as a petition for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we stated in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):

An appellant challenging the discretionary aspects of his[, or her,] sentence must invoke this Court's jurisdiction by satisfying a four-part test:

We conduct a four-part analysis to determine: (1) whether appellant [ ] 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.A. § 9781(b).

[Moury, 992 A.2d] at 170 [(citation omitted)]. We evaluate on a case-by-case basis whether a particular issue constitutes a substantial question about the appropriateness of sentence. Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001).

Commonwealth v. Hill, 210 A.3d 1104, 1116 (Pa. Super. 2019) (original

brackets omitted).

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Here, Appellant complied with the first three requirements as set forth

above. Appellant also raises a substantial question. This Court previously

determined that “an excessive sentence claim – in conjunction with an

assertion that the court failed to consider mitigating factors – raises a

substantial question.” Commonwealth v. Swope, 123 A.3d 333, 339 (Pa.

Super. 2015), citing Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa.

Super. 2014); see also Commonwealth v. Caldwell, 117 A.3d 763, 770

(Pa. Super. 2015) (en banc) (same). As such, we will review Appellant’s

sentencing claim.

We adhere to the following standards:

Sentencing is a matter vested in the sound discretion of the sentencing judge. The standard employed when reviewing the discretionary aspects of sentencing is very narrow. We may reverse only if the sentencing court abused its discretion or committed an error of law. 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. We must accord the sentencing court's decision great weight because it was in the best position to review the defendant's character, defiance or indifference, and the overall effect and nature of the crime.

Commonwealth v. Cook, 941 A.2d 7, 11–12 (Pa. Super. 2007) (internal

citations and quotations omitted).

Pursuant to statute,

the court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to

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the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.... In every case in which the court imposes a sentence for a felony or 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.

42 Pa.C.S.A. § 9721(b).

Moreover, we have held:

[i]n imposing sentence, the trial court is required to consider the particular circumstances of the offense and the character of the defendant. The trial court should refer to the defendant's prior criminal record, age, personal characteristics, and potential for rehabilitation.

Commonwealth v. Fowler, 893 A.2d 758, 767-768 (Pa. Super. 2006)

(internal citation omitted).

Finally, we note that “long standing precedent ... recognizes that [the

Sentencing Code] affords the sentencing court discretion to impose its

sentence concurrently or consecutively to other sentences being imposed at

the same time or to sentences already imposed.” Commonwealth v. Brown,

249 A.3d 1206, 1212 (Pa. Super. 2021) (internal citation omitted); see also

42 Pa.C.S.A. § 9721(a). “Defendants convicted of multiple offenses are not

entitled to a ‘volume discount’ on their aggregate sentence.”

Commonwealth v. Pisarchuk, 306 A.3d 872, 881 (Pa. Super. 2023)

(citation omitted). “Further, we will not disturb consecutive sentences unless

the aggregate sentence is grossly disparate to the defendant's conduct, or

viscerally appears as patently unreasonable.” Id. (citation omitted).

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Upon our review of applicable law and the sentencing transcript in this

matter, we discern no trial court abuse of discretion. Here, the trial court was

aware of Appellant’s prior record score of zero, as well as the sentencing

guidelines. N.T., 6/1/2023, at 23. The sentencing guidelines recommended

three-to-12-month sentences, plus or minus six months, for each of the three

felonies for which Appellant was convicted - unlawful contact, corruption of

minors, and endangering the welfare of a child. 4 Id. Moreover, prior to

sentencing, the trial court heard victim impact testimony from several family

members and Victim. Trial Court Opinion, 2/28/2024, at 8 (“The sentencing

court heard multiple impact statements asking for a lengthy term of

incarceration and had to deal with the unusually disruptive behavior of []

Appellant throughout the sentencing hearing.”). The trial court found that

Appellant’s “complete and total lack of remorse” was an “aggravating factor”

for the sentence imposed. N.T., 6/1/2023, at 76; see also Trial Court

Opinion, 2/28/2024, at 8 (in its subsequent opinion, the trial court noted the

following aggravating factors, “Appellant’s complete lack of even the slightest

remorse, the court’s concern with the safety of the community, the level of

harm done to [] Victim and her family, and the need for long-term

monitoring[.]”). Accordingly, we conclude that the trial court placed its

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4 Each felony carried a statutory maximum sentence of seven years of incarceration. See 18 Pa.C.S.A. § 1103(3) (maximum sentence for a felony of the third degree is seven years). Here, the aggregate sentence of imprisonment is six years, under the statutory aggregate maximum of 21 years and, therefore, legal.

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reasons on the record for the sentence imposed, after considering the gravity

and particular circumstances of the offenses, the protection of the public, and

Appellant’s character and rehabilitative needs. The trial court ultimately

sentenced Appellant to incarceration on one of the felonies, with consecutive

probationary sentences for the other two. N.T., 6/1/2023, at 80-82. The

trial court later acknowledged, “this sentence” had the same effect as

sentencing “Appellant on each of the third-degree felonies to consecutive

periods of one to two years of incarceration followed by three years of

reporting probation.” Trial Court Opinion, 2/28/2024, at 9. We agree with

this assessment. Finally, we will not disturb the consecutive nature of the

penalties imposed because the aggregate is not grossly disparate to

Appellant’s conduct spanning over the course of years, does not viscerally

appear as patently unreasonable, and Appellant is not entitled to a volume

discount. For all of the foregoing reasons, Appellant is not entitled to relief on

his sentencing claim.

Judgment of sentence affirmed.

Date: 3/20/2025

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