Com. v. Valdvia, G.

• Court: Superior Court of Pennsylvania
• Decided: August 24, 2021
• Docket: 82 EDA 2020
• Status: Unpublished

Opinion

J-A01045-21

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : GERARDO VALDVIA, : : Appellant : No. 82 EDA 2020

Appeal from the Judgment of Sentence Entered November 15, 2019 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005909-2018

BEFORE: BENDER, P.J.E., OLSON, J. and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 24, 2021

Appellant, Gerardo Valdvia, appeals from the judgment of sentence of

an aggregate term of two to five years’ incarceration, followed by two years’

probation, imposed after he was convicted, following a non-jury trial, of

corruption of a minor (“COM”), endangering the welfare of a child (“EWOC”),

and physical harassment. Appellant challenges the sufficiency and weight of

the evidence to sustain his convictions, as well as the discretionary aspects

of his sentence. He also contends that a new trial is warranted due to

prosecutorial misconduct. After careful review, we reverse Appellant’s

conviction for COM, vacate his judgment of sentence for that offense, and

affirm his judgment of sentence for EWOC and harassment.

*Retired Senior Judge assigned to the Superior Court. J-A01045-21

On August 31, 2018, Appellant was charged with one count each of

unlawful contact with a minor, 18 Pa.C.S. § 6318(a)(1); COM, 18

Pa.C.S. § 6301(a)(1); harassment, 18 Pa.C.S. § 2709(a)(1); EWOC, 18

Pa.C.S. § 4304(a)(1); and indecent assault of a person less than 13 years of

age, 18 Pa.C.S. § 3126(a)(7). He proceeded to a non-jury trial on

September 3, 2019, wherein L.W., the victim, testified to the incidents

occurring between November 12, 2012, and November 12, 2015, which gave

rise to the charges. L.W.’s mother and Appellant also testified.

The following factual background was established at Appellant’s non-

jury trial. L.W. testified that when she was a child, Appellant, who was then

married to her aunt, sexually assaulted her on multiple occasions. L.W.

would frequently spend time with Appellant’s daughters, who are L.W.’s

cousins, at Appellant’s house. When L.W. was 11 years old, she was alone

in Appellant’s basement taking out her braids when Appellant went

downstairs, approached L.W. from behind, and squeezed her buttocks. She

testified that she did not tell anyone at the time because she was afraid her

aunt would “pin it on [her], not believe [her], and take [Appellant’s] side.”

N.T., 9/3/2019, at 14.

The following year, just after L.W.’s 12th birthday, Appellant assaulted

L.W. a second time. She testified that he went into her room when she was

cleaning up and “made [her] touch his penis over his clothes.” Id. at 15.

Immediately after Appellant forced L.W. to touch him, he handed L.W. cash.

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She testified that she did not know if the money was “hush money or

birthday money,” but it was strange to her as Appellant had never given her

money before. Id. at 16. L.W. did not come forward after this incident

because she was “scared of how people would think” about her. Id. at 19-

20.

Later that year, L.W. went to Dave & Buster’s, an arcade, with

Appellant and his daughters. When they were driving home, Appellant

dropped his daughters off and then asked L.W. to move to the front seat of

the car. L.W. testified that she was in the back seat acting like she was

sleeping because she “knew he was going to try to do something” when they

were alone. Id. at 21. After she reluctantly moved to the front seat,

Appellant asked her if she “wanted to do anything with him.” Id. at 20. She

told him “no,” and he replied, “Well, I will find someone else to do something

with me.” Id. at 21.

When L.W. was 13, her grandmother asked her to go to the bank

alone with Appellant. She testified that she did not want to go because she

was afraid Appellant would try to touch her or force her to touch him. Id. at

24. Ultimately, she got in the front seat of the car with him. L.W. testified

that during the drive Appellant asked her if she had “told anyone.” Id. at

25. She assumed he was referring to “him touching [her] and [her]

touching him.” Id. She had not told anyone at that point, but in May of

2018, when L.W. was 17 years old, she told her mother about the foregoing

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incidents. L.W. explained that one of her friends had been raped, which

made her want to tell her mother. Id. at 26. That same day, she went to

the police station to make a report.

At the close of trial, the trial court found Appellant guilty of COM,

EWOC, and harassment, and not guilty of unlawful contact with a minor and

indecent assault of a person less than 13 years of age. On November 15,

2019, Appellant was sentenced to two to five years’ incarceration followed

by two years’ probation for COM, and two to five years’ incarceration

followed by two years’ probation for EWOC. The sentence for EWOC was set

to run concurrently with the sentence for COM. Additionally, Appellant’s

conviction for COM classified him as a Tier I sexual offender, and required

him to comply with the fifteen-year registration and reporting requirements

of the Sexual Offender Registration and Notification Act (“SORNA”). See 42

Pa.C.S. §§ 9799.14(b); 9799.15(a)(1). No further penalty was imposed for

Appellant’s harassment conviction. Appellant did not file a post-sentence

motion.

Appellant filed a timely notice of appeal and complied with the trial

court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. No responsive Rule 1925(a) opinion was filed, as

the trial judge was no longer sitting on the bench. On appeal, Appellant

presents five issues for our review:

1. Was the evidence insufficient to support the guilty verdict?

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2. Did the honorable trial court err in returning an inconsistent verdict, as the honorable trial court found [] Appellant not guilty of the charges of unlawful contact with a minor and indecent assault, but guilty of the charges of harassment[,] a summary offense, [COM], and [EWOC?]

3. Did the honorable trial court err in finding [] Appellant guilty of the crime of corruption of minors, as [] Appellant was found not guilty of any criminal offenses or any course of conduct in violation of Chapter 31 relating to sexual offenses, which is legally required pursuant to []18 [Pa.C.S. §] 6301[(a)](1)(iii)?

4. Was the verdict against the weight of the evidence?

5. Did the honorable trial court sentence [] Appellant to an excessive, disproportionate sentence and outside the sentencing guidelines[?]

6. Did the Commonwealth commit misconduct by failing to disclose to the honorable trial court and [] Appellant and his trial counsel that the complaining witness[’s] father is a [Philadelphia politician1] and should have at least informed and disclosed to the honorable trial court and [Appellant] prior to the [non-]jury trial for possible court recusal and for a colloquy of [] Appellant of the potential conflict?

Appellant’s Brief at 7 (capitalization altered, questions reordered for ease of

disposition).

In his first issue, Appellant presents a blanket claim that there was

insufficient evidence to support his convictions. Appellant’s Brief at 43.

Before we can reach the merits of this claim, we must first determine if

Appellant has preserved it for our review. Appellant’s Rule 1925(b)

1 Pursuant to Superior Court I.O.P. 424(A), we have omitted specific information pertaining to the political positions of L.W.’s father to protect L.W.’s identity.

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statement exclusively states, “The evidence was insufficient to support the

guilty verdict.” Appellant’s Rule 1925(b) Statement at 1 (unnumbered).

Appellant was convicted of three offenses, each of which contains various

elements, yet he failed to specify what offense or element the

Commonwealth failed to prove. Therefore, Appellant has waived his general

sufficiency-of-the-evidence issue on appeal. See Commonwealth v.

Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (reiterating “that when

challenging the sufficiency of the evidence on appeal, the [a]ppellant’s

[Rule] 1925 statement must ‘specify the element or elements upon which

the evidence was insufficient’ in order to preserve the issue for appeal”)

(quoting Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa. Super.

2008) (citations omitted)).

However, we will address Appellant’s more specific sufficiency claim,

which he presents as an argument regarding inconsistent verdicts.

Specifically, in his second issue, Appellant argues that he is entitled to relief

because the trial court rendered an inconsistent verdict. Appellant’s Brief at

27. Appellant claims that “the []trial court did not believe the complaining

witness[’s] testimony that [] Appellant placed her hand on top of his clothed

penis, as the [trial c]ourt found [] Appellant not guilty of indecent assault

and unlawful contact with a minor.” Id. at 28. Thus, Appellant contends,

there was no evidence credited by the trial court that he engaged in conduct

that could support a conviction for EWOC. Id.

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A claim based on inconsistent verdicts is essentially an argument that

the evidence was insufficient, in that an appellant is arguing that a verdict of

acquittal implies a factual finding which would undermine a guilty verdict.

See Commonwealth v. Baker-Myers, ___ A.3d ___, 2021 WL 3073152,

at *4-6 (Pa. filed July 21, 2021). Our scope and standard of review for

sufficiency-of-the-evidence claims are well settled. “A claim challenging the

sufficiency of the evidence is a question of law. Evidence will be deemed

sufficient to support the verdict when it establishes each material element of

the crime charged and the commission thereof by the accused, beyond a

reasonable doubt.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa.

2000) (citations omitted).

Generally, inconsistent verdicts are not grounds for relief:

“[I]nconsistent verdicts, while often perplexing, are not considered mistakes and do not constitute a basis for reversal.” Commonwealth v. Petteway, 847 A.2d 713, 718 (Pa. Super. 2004) (citations omitted). Rather, “[t]he rationale for allowing inconsistent verdicts is that it is the jury’s sole prerogative to decide on which counts to convict in order to provide a defendant with sufficient punishment.” Commonwealth v. Miller, 657 A.2d 946, 948 (Pa. Super. 1995) (citations omitted). “When an acquittal on one count in an indictment is inconsistent with a conviction on a second count, the court looks upon the acquittal as no more than the jury’s assumption of a power which they had no right to exercise, but to which they were disposed through lenity. Thus, this Court will not disturb guilty verdicts on the basis of apparent inconsistencies as long as there is sufficient evidence to support the verdict.” Petteway, supra.

Commonwealth v. Frisbie, 889 A.2d 1271, 1273 (Pa. Super. 2005)

(citations modified). Because a verdict can be the result of compromise,

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leniency, or mistake, “factual findings may not be inferred from a jury’s

acquittal.” Commonwealth v. Moore, 103 A.3d 1240, 1248 (Pa. 2014).

Although these cases phrase this rule in the context of jury trials, this Court

has held that the “same rule applies in nonjury trials.” Commonwealth v.

Yachymiak, 505 A.2d 1024, 1026 (Pa. Super. 1986).

Here, Appellant does not argue that an express exception to the

general rule on inconsistent verdicts applies. Indeed, he acknowledges that

“‘this Court will not disturb the guilty verdicts on the basis of [an] apparent

inconsistenc[y] as long as [the] evidence [is sufficient] to support the

[guilty] verdict[s].’” Appellant’s Brief at 28 (quoting Commonwealth v.

Boyles 595 A.2d 1180, 1884 (Pa. Super. 1991)). Nevertheless, Appellant

argues that the verdict of “not guilty of all sexual contact charges”

demonstrates that Appellant did not engage in conduct that endangered the

welfare of a child. Id. In doing so, Appellant is asking this Court to infer

factual findings from the trial court’s verdict, which we cannot do. See

Moore, 103 A.3d at 1248. Accordingly, Appellant’s second claim is without

merit.

In his third issue, Appellant challenges his conviction for COM in light

of the trial court’s verdict that he was not guilty of indecent assault of a

minor, the only Chapter 31 offense with which Appellant was charged.

Appellant’s Brief at 16. The subsection of COM under which Appellant was

convicted states in relevant part, “Whoever, being of the age of 18 years

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and upwards, by any course of conduct in violation of Chapter 31 (relating to

sexual offenses) corrupts or tends to corrupt the morals of any minor less

than 18 years of age … commits a felony of the third degree.” 18 Pa.C.S. §

6301(a)(1)(ii). He argues that there is insufficient evidence to sustain his

COM conviction because, in failing to obtain a conviction for indecent assault

of a minor, which is a Chapter 31 offense, the Commonwealth failed to prove

all the elements of COM. Appellant’s Brief at 16-18.

Generally, inconsistency in verdicts does not support the conclusion

that there was insufficient evidence to sustain a conviction because “an

acquittal cannot be interpreted as a specific finding in relation to some of the

evidence.” Commonwealth v. Magliocco, 883 A.2d 479, 492 (Pa. 2005)

(citations omitted). However, as in the instant case, where the elements of

the charged crime include that the Commonwealth prove a predicate

offense, an acquittal on the predicate offense presents a challenge to the

sufficiency of the evidence. See Baker-Myers, ___ A.3d ___, 2021 WL

3073152, at *4-6.

Our Supreme Court has held that the Commonwealth is required to

prove a Chapter 31 offense as the predicate offense for a felony COM

conviction.

[T]he language “in violation of Chapter 31” is an essential element of a felony [COM] offense under 18 Pa.C.S. § 6301(a)(1)(ii). Although the Commonwealth is not required to formally charge or secure a conviction for a predicate Chapter 31 offense, where, as here, the jury is specifically instructed on the predicate offense or offenses pertaining to the [COM] charge,

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and the jury then renders an acquittal on all such predicates, a conviction for felony [COM] cannot stand. In reaching this conclusion, we do not disturb the longstanding principle permitting inconsistent verdicts or its corollary that factual findings may not be inferred from a jury’s acquittal. Instead, we simply recognize the statute’s unusual phrasing has left it vulnerable to “idiosyncratic sufficiency ... challenges[.]” … And, as demonstrated, it is “the fact of the jury’s acquittal — not any factual inference drawn from the acquittal — and the statutory elements” of the offense that drive this conclusion.

Baker-Myers, ___ A.3d ___, 2021 WL 3073152, at *9 (citations omitted).2

Here, the predicate Chapter 31 offense was indecent assault of a

minor. As detailed hereinabove, the trial court found Appellant not guilty of

indecent assault of a minor. Because the trial court found Appellant not

guilty of the only charged Chapter 31 offense, there was insufficient

evidence to support Appellant’s COM conviction. Consequently, we reverse

Appellant’s conviction for COM and vacate the sentence imposed for that

offense.3 Because the court sentenced Appellant to concurrent, identical

sentences for COM and EWOC, the overall sentencing scheme has not been

2 At the time Appellant filed his notice of appeal, Baker-Myers was pending

before our Supreme Court. At issue in that case was the question of whether a Chapter 31 violation is an essential element of COM. In its brief, the Commonwealth conceded that if our Supreme Court concluded that a violation of Chapter 31 is an essential element of COM, there was insufficient evidence to convict Appellant of COM in the instant case. Commonwealth’s Brief at 11-12. In light of this, the Commonwealth requested that this Court defer its decision until our Supreme Court rendered its decision in Baker- Myers, which it did on July 21, 2021. 3 This disposition also vacates the SORNA registration requirement imposed

as a result of the COM conviction. See Commonwealth v. Baker-Myers, 210 A.3d 1093, 1096 (Pa. Super. 2019), affirmed, ___ A.3d ___, 2021 WL 3073152.

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disturbed, and we need not remand for resentencing. Commonwealth v.

Thur, 906 A.2d 552, 569-70 (Pa. Super. 2006) (declining to remand

because vacating Thur’s sentence did not disrupt the overall sentencing

scheme where the sentence was concurrent and vacating did not change the

aggregate length of incarceration).

Appellant’s fourth issue challenges the weight of the evidence to

support his convictions. Appellant’s Brief at 37. Initially, to preserve a

challenge to the weight of the evidence, the appellant must raise that claim

before the trial court. See Pa.R.Crim.P. 607(A) (stating that a claim that a

verdict was against the weight of the evidence must be raised before trial

court orally or in a written motion prior to sentencing, or in a post-sentence

motion). Presently, Appellant did not file a post-sentence motion raising his

weight issue, and he fails to point to where in the record he preserved it

prior to sentencing. See Pa.R.A.P. 2119(e) (directing that the appellant

must set forth in the argument portion of his brief where in the record he

preserved the issue before the trial court). Our review confirms that

Appellant did not preserve this claim orally prior to sentencing.

Consequently, Appellant’s issue is waived. See Commonwealth v. Griffin,

65 A.3d 932, 938 (Pa. Super. 2013) (finding a weight-of-the-evidence claim

waived where the appellant failed to raise it in a pre-sentence motion, did

not address the issue orally prior to sentencing, and did not raise it in a

post-sentence motion).

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In his fifth issue, Appellant challenges the discretionary aspects of his

sentence. Appellant’s Brief at 32.

Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right. Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test:

We conduct a four-part analysis to determine: (1) whether [the] 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 [the] appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)[.] Objections to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or in a motion to modify the sentence imposed. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003)[.]

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

In the present case, Appellant has failed to preserve his discretionary-

aspects-of-sentencing challenge in a post-sentence motion or orally at the

sentencing hearing. Consequently, this issue is waived. See Griffin,

supra; see also Commonwealth v. Bromley, 862 A.2d 598, 603 (Pa.

Super. 2004) (“It is well settled that an [a]ppellant’s challenge to the

discretionary aspects of his sentence is waived if the [a]ppellant has not filed

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a post-sentence motion challenging the discretionary aspects with the

sentencing court.”) (citation omitted).

Appellant presents his final issue as a prosecutorial-misconduct claim,

arguing that the Commonwealth had a duty to inform Appellant and the trial

court that L.W.’s father knew the trial judge through L.W.’s father’s current

position in, and history of involvement with, the Philadelphia Democratic

party. Appellant’s Brief at 20. Specifically, Appellant alleges that “the trial

court was ambushed [at the sentencing hearing] by the Commonwealth’s

failure to disclose that [L.W.’s] father had known the [t]rial [j]udge for over

twenty years” when L.W.’s father appeared and testified at Appellant’s

sentencing hearing. Id. at 20-21.

Initially, we observe that Appellant did not object or otherwise

preserve the issue before the trial court. Therefore, this claim is waived.

See Commonwealth v. Sasse, 921 A.2d 1229, 1238 (Pa. Super. 2007)

(“In order to preserve a claim of prosecutorial misconduct for appeal, a

defendant must make an objection and move for a mistrial.”). To the extent

Appellant is claiming the trial judge should have recused himself, Appellant

has also waived this claim by not requesting recusal before the trial court at

the time he became aware of the alleged conflict. See Commonwealth v.

Blount, 207 A.3d 925, 930-31 (Pa. Super. 2019) (holding that the

appellant’s recusal claim was waived because the appellant waited until the

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end of sentencing to move for the judge to recuse herself, rather than when

he became aware of the basis for his recusal request).

Based on the foregoing, we affirm Appellant’s conviction and judgment

of sentence for EWOC and harassment. We reverse his conviction for COM

and vacate his judgment of sentence for that offense.

Conviction and sentence for COM vacated. Judgment of sentence

affirmed in all other respects.

Judge Strassburger did not participate in the consideration or decision

of this case.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/24/2021

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