Com. v. Suarez, H.

• Court: Superior Court of Pennsylvania
• Decided: July 24, 2017
• Docket: Com. v. Suarez, H. No. 3839 EDA 2016
• Status: Unpublished

Opinion

J. S36038/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : HECTOR SUAREZ, : No. 3839 EDA 2016 : Appellant :

Appeal from the Judgment of Sentence, November 10, 2016, in the Court of Common Pleas of Monroe County Criminal Division at No. CP-45-CR-0000523-2014

BEFORE: PANELLA, J., OLSON, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 24, 2017

Hector Suarez appeals from the November 10, 2016 aggregate

judgment of sentence of 36 to 120 months’ imprisonment imposed after a

panel of this court remanded this matter for resentencing on appellant’s

convictions for indecent assault, endangering the welfare of children

(“EWOC”), and corruption of minors.1 After careful review, we affirm the

judgment of sentence.

The relevant facts and procedural history of this case are as follows.

Appellant was charged at two separate criminal informations with multiple

crimes following accusations by his eleven-year-old granddaughter, N.D.,

that appellant had licked and touched her “private part” on numerous

1 18 Pa.C.S.A. §§ 3126, 4304, and 6301, respectively. J. S36038/17

occasions. (See trial court opinion, 5/15/15 at 1-2, 4.) Specifically, the

criminal information filed at No. CP-45-CR-0000523-2014 referred to the

period between May 1 and September 7, 2013, and set forth the following

charges: two counts of criminal attempt, four counts of aggravated indecent

assault, indecent assault, EWOC, and corruption of minors.2 The criminal

information filed at No. CP-45-CR-00001814-2014 referred to the period

between November 1, 2012 and March 12, 2013, and set forth the following

charges: unlawful contact with a minor,3 indecent assault, EWOC, and

corruption of minors.

These two cases were consolidated, and appellant proceeded to a jury

trial on October 29, 2014. As we recognized in our prior memorandum, the

verdict sheet did not indicate that appellant was charged with multiple

counts of each crime, the date of any of the offenses, or the criminal

information number corresponding to each offense. See Commonwealth

v. Suarez, 2016 WL 5210886, at *1, 3 (Pa.Super. July 27, 2016)

(unpublished memorandum). Rather, the record reveals that the verdict

sheet listed only five charges for the jury’s consideration: (1) aggravated

indecent assault of a child; (2) indecent assault of a person less than

13 years of age; (3) EWOC; (4) corruption of minors; and (5) involuntary

2 Id. §§ 901, 3125(a)(7) and (b), 3126(a)(7), 4304, and 6301(a)(1)(ii), respectively. 3 Id. § 6318.

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deviate sexual intercourse (“IDSI”) with a child. (Id.; see also verdict

sheet, 10/30/14.) Following a two-day trial, appellant was found guilty of

indecent assault of a person less than 13 years of age, EWOC, and

corruption of minors on October 30, 2014. The jury found appellant not

guilty of aggravated indecent assault and IDSI.

On January 23, 2015, the trial court sentenced appellant to an

aggregate term of 36 to 120 months’ imprisonment. Specifically, at

No. CP-45-CR-0000523-2014, the trial court sentenced appellant to

concurrent terms of 18 to 60 months’ imprisonment for indecent assault and

corruption of minors, graded as third-degree felonies, and a consecutive

term of 18 to 60 months’ imprisonment for EWOC, also graded as a

third-degree felony. At No. CP-45-CR-00001814-2014, the trial court

imposed concurrent terms of 18 to 60 months’ imprisonment for the

convictions of indecent assault, EWOC, and corruption of minors, to be

served concurrent to the aggregate sentence imposed at No. CP-45-CR-

0000523-2014.

On July 27, 2016, a panel of this court vacated the judgment of

sentence in its entirety on the basis “that the trial court erred in imposing

two sentences for each guilty verdict” and remanded this matter for

resentencing. As noted, on November 10, 2016, the trial court resentenced

appellant at No. CP-45-CR-0000523-2014 to 18 to 60 months’ imprisonment

for EWOC and a consecutive term of 18 to 60 months’ imprisonment for

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corruption of minors. (See sentencing order, 11/10/16; certified record

at 6.) Thus, appellant’s aggregate judgment of sentence remained 36 to

120 months’ imprisonment. On November 18, 2016, appellant filed a

motion for reconsideration of sentence, which was denied by the trial court

that same day. This timely appeal followed on December 14, 2016. On

December 15, 2016, the trial court entered an order directing appellant to

file a Pa.R.A.P. 1925(b) statement within 21 days. Appellant complied with

the trial court’s order and filed a timely Rule 1925(b) statement on

January 4, 2017. Thereafter, on January 10, 2017, the trial court filed its

comprehensive Rule 1925(a) opinion.

Appellant raises the following issues for our review:

I. Did the trial court abuse its discretion by grading the indecent assault person less than 13 years of age and endangering the welfare of a child as felonies of the third degree finding there was a course of conduct when there were two distinct acts that were alleged to occur a significant time apart but only one of the acts was for this case?

II. Did the trial court abuse its discretion by allowing the charges to proceed under a course of conduct?

III. Did the trial court abuse its discretion in sentencing [appellant] to consecutive sentences for each of the charges as the conviction for both charges all relate to the same instance; the sentences should have been run concurrent, by making the sentences consecutive the sentence is clearly unreasonable under the circumstances?

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IV. Did the trial court abuse its discretion by not setting aside the verdict to all counts where it was against the weight of the evidence for a felony conviction for course of conduct?

V. Did the trial court abuse its discretion by not setting aside the verdict to all counts where it was against the sufficiency of the evidence for a felony conviction for course of conduct?

Appellant’s brief at 5. For the ease of our discussion, some of appellant’s

issues will be addressed simultaneously and/or in a slightly different order

than presented in his brief.

Preliminarily, we note that any challenge to the trial court’s purported

sentence for the crime of indecent assault person less than 13 years of age

is moot, as our review of the November 10, 2016 sentencing order reveals

that the trial court imposed no sentence with respect to indecent assault at

No. CP-45-CR-0000523-2014. Moreover, to the extent that appellant argues

that his sentence is improper because the trial court imposed consecutive

sentences, we find that appellant is not entitled to relief. This court has long

recognized that bald excessiveness claims premised on imposition of

consecutive sentences do not raise a substantial question for our review.

See Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa.Super. 2015)

(en banc) (stating, “[a] court’s exercise of discretion in imposing a sentence

concurrently or consecutively does not ordinarily raise a substantial

question[]”), appeal denied, 126 A.3d 1282 (Pa. 2015); see also

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Commonwealth v. Ahmad, 961 A.2d 884 (Pa.Super. 2008);

Commonwealth v. Pass, 914 A.2d 442 (Pa.Super. 2006).

Appellant further argues that the trial court abused its discretion in

sentencing him to consecutive sentences for EWOC and corruption of minors,

“as the conviction for both charges relate to the same instance[.]”

(Appellant’s brief at 14.) In support of this claim, appellant maintains that

“the sentences should have been run concurrent [and] by making the

sentences consecutive the sentence is clearly unreasonable under the

circumstances.” (Id.)

Upon review, we note that a prior panel of this court addressed this

identical sentencing claim in appellant’s initial appeal and concluded that it

lacks merit. See Commonwealth v. Suarez, 2016 WL 5210886, at *7-8

(Pa.Super. July 27, 2016) (unpublished memorandum). Accordingly, we

adopt the reasoning as set forth in our prior memorandum with respect to

the resentence.

Appellant further argues that the trial court erred in grading each

offense for which he was convicted as a third-degree felony, based upon a

“course of conduct.” (Appellant’s brief at 9-13.) In a related argument,

appellant contends that there was insufficient evidence to establish a

continuing “course of conduct” necessary to sustain his convictions for EWOC

and corruption of minors. (Id. at 17-18.) Appellant further avers that the

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verdict “was against the weight of the evidence for a felony conviction for

course of conduct[.]” (Id. at 16.)

Our review indicates that all three of these arguments were

comprehensively addressed in this court’s prior memorandum. See

Commonwealth v. Suarez, 12016 WL 5210886 (Pa.Super. 2016)

(unpublished memorandum at *3-5, 8). With respect to the sentencing

claim presented by appellant’s “course of conduct” argument, we find that

the trial court’s grading of appellant’s offenses as third-degree felonies was

entirely proper and the trial court did not abuse its discretion in this regard.

Moreover, to the extent appellant raises sufficiency and weight claims in

relation to his “course of conduct” argument, we note that this court has

long recognized that a limited grant of relief for resentencing does not entitle

appellant to litigate on appeal claims unrelated to the resentencing. See

Commonwealth v. Anderson, 801 A.2d 1264 (Pa.Super. 2002)

(dismissing an appeal following remand for resentencing where an appellant

raised new issues on appeal challenging his conviction). In reaching this

decision, the Anderson court reasoned that, “having been re-sentenced

following remand, appellant could not file another direct appeal attacking his

conviction; the only issues reviewable in a direct appeal would be challenges

to the sentence imposed following remand.” Id. at 1266. Accordingly,

appellant’s sufficiency and weight of the evidence claims are not before this

court and may not be addressed.

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For all the forgoing reasons, we affirm the November 10, 2016

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/24/2017

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