Com. v. Vasquez-Diaz, A.

• Court: Superior Court of Pennsylvania
• Decided: May 22, 2017
• Docket: Com. v. Vasquez-Diaz, A. No. 369 EDA 2014
• Status: Unpublished

Opinion

J-S81005-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

ANGEL VASQUEZ-DIAZ

Appellant No. 369 EDA 2014

Appeal from the Judgment of Sentence September 17, 2013 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0008880-2012

BEFORE: BOWES AND MOULTON, JJ., AND STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.: FILED MAY 22, 2017

Angel Vasquez-Diaz appeals pro se from the aggregate judgment of

sentence of thirty-five to seventy years incarceration imposed after a jury

found him guilty of rape by forcible compulsion, involuntary deviate sexual

intercourse with a child, unlawful contact with a minor, endangering welfare

of a child, indecent assault, and terroristic threats. Since Appellant was

sentenced to a mandatory minimum sentence under a statute that has been

declared unconstitutional, we vacate judgment of sentence and remand for

resentencing. In all other respects, we affirm.

The minor victim in this matter, B.P., lived with her mother and three

siblings in her mother’s home. N.T. Vol. I, 5/21/13, at 41-43. Appellant,

who was dating B.P.’s mother, would often stay the night. Id. at 41. One

* Former Justice specially assigned to the Superior Court. J-S81005-16

day, Appellant followed B.P. from the shower to her bedroom. Id. at 43.

With the aid of a diagram, B.P. testified that Appellant rubbed his penis on

her vaginal area and inserted his penis into her anus. Id. at 52-56. He told

her that if she told anyone, he would kill her family. Id. at 61. B.P.

eventually told her sister, C.P. Id. at 59.

C.P. testified that in March of 2012, B.P. told her that Appellant had

touched her. Id. at 80. She immediately called their older sister, Aisha.

Id. at 81. Aisha, in turn, called B.P’s father, who took C.P. and B.P. to the

hospital. Id. at 113. C.P. also testified that her mother said Appellant had

watched C.P. while she took a shower, and that she awoke several times to

see Appellant watching her sleep. Id. at 82-84.

Philadelphia Police Officer Leonard Johnson was dispatched to the

hospital for the reported rape, where he met B.P., C.P., and their father. Id.

at 21. He spoke to B.P., who told him that Appellant raped her on January

3, 2012. Id. at 23, 28.

The Commonwealth also presented Dr. Marcia McColgan, an expert

witness in the field of pediatric child abuse. N.T., 5/22/13, at 32. She

evaluated B.P. on April 24, 2012, and observed an area where there was

almost no hymen, which she explained can occur in child sexual abuse cases

but does not necessarily prove that penetration occurred. Id. at 44-45. Dr.

McColgan also testified that the anus is meant to stretch, and that

penetration can occur without lasting physical trauma. Moreover, where

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superficial injury has occurred, that trauma can heal without any residual

scarring. Id. at 45. She also noted that B.P. stated the incident occurred in

January or February. Id. at 46.

Appellant was found guilty of the aforementioned crimes and

sentenced to an aggregate term of thirty-five to seventy years

imprisonment. This sentence included the imposition of a mandatory

minimum term of no less than ten years incarceration.1 See 42 Pa.C.S. §

9718. During the pendency of these proceedings, that statute was declared

unconstitutional in its entirety. Commonwealth v. Wolfe, 140 A.3d 651

(Pa. 2016). The Commonwealth concedes that Appellant is entitled to

resentencing.

Appellant filed timely post-sentence motions, which were denied by

operation of law, followed by a timely notice of appeal. Appellate review was

repeatedly delayed by the unavailability of trial transcripts. On May 28,

____________________________________________

1 We note that the Commonwealth correctly states Appellant was convicted of rape by forcible compulsion, 18 Pa.C.S. § 3121(a)(1), while the trial court opinion states that the “mandatory minimum sentence [was] for his conviction of having sexual contact with a victim under the age of 13 years . . . pursuant to 42 Pa.C.S.A. § 9718(a)(3)[.]” However, § 9718(a)(3) applies to a conviction of 18 Pa.C.S. § 3121(c), which is rape of a child. For unknown reasons, the Commonwealth did not elect to proceed on the rape of a child charge.

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2015, the trial court held a Grazier2 hearing and permitted Appellant to

represent himself on appeal.

Appellant filed a new concise statement of errors complained of on

appeal, and the trial court authored its opinion on March 23, 2016.

Appellant presents for our review the same issues raised in his Pa.R.A.P.

1925(b) statement, which we summarize as follows:

I. The trial court erred in recording the verdict as the jurors did not unanimously agree.

II. The trial court improperly admitted testimony that Appellant watched the victim’s sister showering and sleeping.

III. The trial court improperly prohibited Appellant from cross- examining the victim’s sister about her drug use.

IV. The trial court improperly permitted several jurors to be seated on the panel.

V. The trial court impermissibly permitted the jurors to receive a transcript of the expert witness’s testimony.

VI. The Commonwealth orchestrated the proceeding through deliberate deception.

VII. Insufficient evidence supported the conviction for rape by forcible compulsion.

VIII. The verdict for rape is against the weight of the evidence.

IX. Appellant is serving an illegal mandatory minimum sentence.

2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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Appellant’s brief, passim.

Appellant’s first issue concerns the answer of juror number one

following Appellant’s request to poll the jury. When the foreperson asked,

“Do you agree or disagree with the verdict as stated?”, the juror replied,

“Yes.” Since this question as answered was clearly ambiguous, Appellant

claims the verdict was not unanimous. The Commonwealth asks us to find

the issue waived, noting that Appellant has attached to his brief an excerpt

of the transcript which is not included in the certified record. In the

alternative, the Commonwealth asks us to deem the claim waived because

Appellant failed to object to the ambiguous answer.

We decline to find the issue waived on the basis that Appellant failed

to properly include the transcript in the record. “Our law is unequivocal that

the responsibility rests upon the appellant to ensure that the record certified

on appeal is complete in the sense that it contains all of the materials

necessary for the reviewing court to perform its duty.” Commonwealth v.

Preston, 904 A.2d 1, 7 (Pa.Super. 2006) (citation omitted). However, the

trial court’s opinion remarks that “[t]here was an extraordinary delay in the

production of the entire set of trial transcripts . . . as requested by the

defendant[.]” Trial Court Opinion, 3/21/16, at 2. On June 5, 2013, the

court issued an order directing the production of all notes of testimony.

Order, 6/5/13, at 1. Yet, as of the Grazier hearing on May 28, 2015,

several portions of the proceedings had yet to be transcribed, prompting the

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court to issue yet another order. N.T., 5/28/15, at 13-15. Furthermore, the

trial court addressed this claim in its opinion, and, while not directly quoting

the relevant portions of the transcript, the court’s opinion states, “Although

the question ‘Do you agree or disagree with the verdict as stated?,’ in

retrospect, was not artfully crafted by court staff . . . the juror did not raise

any issue or concern in regard to the verdict[.]” Trial Court Opinion,

3/21/16, at 5. Thus, the lack of a transcript is not fatal to our review and

we shall address the merits.

We now examine whether Appellant waived this issue due to his failure

to object to the supposed lack of unanimity. A defendant is permitted by

Rule to poll the jury before the verdict is recorded. Pa.R.Crim.P. 648(G).

Our Supreme Court has explained the purpose of jury polling as follows:

The polling of the jury is the means for definitely determining, before it is too late, whether the jury's verdict reflects the conscience of each of the jurors or whether it was brought about through the coercion or domination of one of them by some of his fellow jurors or resulted from sheer mental or physical exhaustion of a juror. Manifestly, the right is of especial importance where a verdict carrying capital punishment has been rendered. Commonwealth v. Downey, 732 A.2d 593, 595 (Pa. 1999) (quoting

Commonwealth v. Martin, 109 A.2d 325, 328 (Pa. 1954)). As indicated,

polling must be timely conducted. In Downey, the trial court refused the

defendant’s request to poll the jury after the court announced that the

verdict had been rendered but before the jury was released. Our Supreme

Court held that this was erroneous and awarded a new trial. In reaching this

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result, the Court noted that any request to poll is timely if made before the

jury is discharged. “Consistent with our established case law, we

understand Rule 1120(f) to require that a trial court entertain a motion to

poll the jury at any time prior to dispersal of that jury.” Id. at 595

(emphasis added).3

Applying these principles, we find that Appellant’s claim has been

waived. Unlike Downey, polling was conducted; Appellant simply maintains

that the juror’s answer was ambiguous. However, nothing prevented

Appellant from asking clarifying questions if he truly believed that the juror

did not agree with the verdict. Critically, Appellant also failed to object that

the verdict was not unanimous after the polling was conducted, which would

have given the trial court the opportunity to further question the juror.

Thus, asserting ambiguity at this stage in the proceeding comes far too late,

and the claim is waived.

Appellant’s second issue pertains to the pre-trial evidentiary ruling

granting the Commonwealth’s motion in limine. At issue was the

admissibility of the evidence that Appellant observed C.P. while she was

showering and sleeping. With respect to a pretrial ruling by a court as to the

admissibility of this evidence, the following standard of review applies:

3 Rule 1120(f) was renumbered effective April 1, 2001.

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The admissibility of evidence is within the sound discretion of the trial court, and we will not disturb an evidentiary ruling absent an abuse of that discretion. Pennsylvania Rule of Evidence 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Pa.R.E. 404(b)(1). Such evidence may be admitted, however, if offered for a valid purpose such as proving the existence of a common scheme, establishing an individual's motive, intent, or plan, or identifying a criminal defendant as the perpetrator of the offense charged. See Pa.R.E. 404(b)(2)[.] In order for evidence of other criminal activity to be admissible to establish a common scheme, two conditions must be satisfied: (1) the probative value of the evidence must outweigh its potential for prejudice against the defendant, see Pa.R.E. 404(b)(3); and (2) “a comparison of the crimes must establish a logical connection between them.” Commonwealth v. Miller, 541 Pa. 531, 664 A.2d 1310, 1318 (1995).

Commonwealth v. Arrington, 86 A.3d 831, 842 (Pa. 2014) (some

citations omitted). The trial court held that the evidence estabilshed a

common plan or scheme. The Commonwealth points to the following facts in

support of upholding that determination:

Here, defendant’s act of invading C.P.’s privacy was very similar to his rape of B.P. The incidents occurred less than three months apart. The victims of both acts were minor girls and sisters, who lived in the same house with their mother and had the same relationship to defendant, their mother’s boyfriend. Both acts occurred in their house and while the girls were in the particularly vulnerable position of showering or shortly thereafter. The evidence was admissible because it revealed defendant’s plan of exploiting his access to B.P. and C.P. for sexual gratification.

Commonwealth’s brief at 10-11. Appellant, on the other hand, highlights

that the similarities do not rise to the level of a distinctive signature. He

additionally notes that the other acts of viewing C.P. in the shower and

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sleeping established, at best, that Appellant was a voyeur, and thus the prior

acts do not constitute a common scheme of rape.

We find no error. In order to establish a common scheme, our cases

consider the degree of similarities between the prior acts and the crimes in

question. The non-exclusive set of circumstances we consider includes the

victims, acts, location, and any relationship to the accused.

Commonwealth v. O’Brien, 836 A.2d 966 (Pa.Super. 2003), is instructive.

Therein, we reversed a pre-trial order barring the Commonwealth from

introducing, in a prosecution for sexual assault of a minor, evidence

regarding O’Brien’s prior sexual assault convictions of two other victims.

The trial court denied the motion, holding that the acts were “not unlike the

facts and circumstances in many cases of sexual assaults against children.”

Id. at 969 (quoting trial court opinion). We reversed, finding that all the

victims shared similar characteristics, including race, age, location of crime,

and relationship to the defendant. We opined that the trial court failed to

consider the factual similarities of the incidents in their entirety. Id. at 970-

71.

Appellant’s argument in support of error advances the position

rejected by O’Brien, as he asserts the acts were not “so unusual and

distinct as to constitute a ‘signature’ probative of rape.” Appellant’s brief at

10. He relies on Commonwealth v. Elliot, 700 A.2d 1243 (Pa. 1997). In

Elliot, the accused was found guilty of first-degree murder, rape, and other

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charges. The defendant, along with Frank Nardone, took the victim to

Nardone’s apartment. Id. at 1247. When Nardone awoke the next

afternoon, he found the victim’s naked and battered body. After

determining she was dead, he called the police. The autopsy determined the

victim had been raped and strangled. Id. The defendant gave a statement

to police, in which he claimed he had consensual sex with the victim the

evening of her murder and that she was alive when he left her. Id. The

Commonwealth introduced evidence from three prior assaults committed by

the defendant against women who, like the victim, were white women in

their twenties, and had been choked or beaten. Our Supreme Court upheld

the introduction of this evidence under the common scheme theory, but

suggested that the theory applied only where the “crimes are so related that

proof of one tends to prove the others.” Id. at 1249.

Elliot is distinguishable, because in that case the prior acts were

introduced to establish identity of the perpetrator, while B.P. directly

identified Appellant. A higher degree of similarity between crimes is

required when the purpose of the prior crimes is to establish the accused

committed the distinctive acts for which he stands trial. Here, however, B.P.

testified that Appellant committed the rape. Thus, the prior acts were used

to bolster the credibility of B.P.’s account. O’Brien explained the

distinction:

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We agree with the Commonwealth that [two cases cited by O’Brien] are distinguishable from the instant matter. In those cases, the relevance of that evidence was to be used to identify the perpetrator, while here the admission of the evidence of the prior crimes was relevant to establish a common scheme, plan or design and, thus, bolster the victim's credibility.

Id. at 970 (footnote omitted).

We also reject Appellant’s claim that, since the other acts did not

culminate in rape, it cannot fall under the common scheme umbrella.

Nothing in our Rule 404(b) precedents suggests that the other acts must be

at least as serious as the charged offenses. This point is demonstrated by

Commonwealth v. Dunkle, 602 A.2d 830 (Pa. 1992), in which our

Supreme Court addressed the admissibility of prior sexual misconduct

between the defendant and the victim:

We do not believe that the appellee had to engage in the same, exact sexual misconduct for which he was charged in order for the testimony to be admissible. Rather, the testimony concerning his misconduct was admissible to show that the appellee's sexual misconduct was of a continuing and escalating nature. McCormick on Evidence states that prior sexual misconduct with the victim is admissible “[t]o show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial.” McCormick, Evidence § 190, at 449 (2d ed. 1972). The Courts of the Commonwealth have previously relied on this section of that treatise as authoritative.

Id. at 839. While Dunkle concerns prior bad acts committed against the

same victim, that fact was obviously not dispositive. O’Brien, supra;

Commonwealth v. Luktisch, 680 A.2d 877 (Pa.Super. 1996) (defendant’s

biological daughter permitted to testify about sexual abuse in prosecution for

abuse against stepdaughter).

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Applying the foregoing precedents, we do not find that the court

abused its discretion. The relationship of Appellant to the two minor girls is

exactly the same, as both were daughters of his girlfriend. Part of the other

acts involved Appellant watching C.P. shower, and the instant rape occurred

immediately after B.P. showered. Thus, the evidence suggested a

continuum of behavior involving various degrees of sexual gratification

concerning B.P. and C.P. We therefore find no abuse of discretion in

admitting this evidence.

Next, we address Appellant’s argument that the trial court improperly

prevented him from cross-examining C.P. regarding her alleged use of

drugs. On cross-examination, Appellant stated, “If they [Philadelphia

Children’s Alliance]4 said that you were using marijuana, Ecstasy, and

prescription pills,” at which point the Commonwealth objected. Appellant

argues that the trial court erroneously sustained the objection.

We disagree. The law is clear that evidence of drug use is admissible

only if it is relevant to some event related by the witness.

While this Court has consistently held that “intoxication on the part of a witness at the time of an occurrence about which he has testified is a proper matter for the jury's consideration,” Commonwealth v. Small, 559 Pa. 423, 741 A.2d 666, 677 (1999) (citations omitted), the jury should not consider for ____________________________________________

4 The record indicates that Philadelphia Children’s Alliance and the Department of Health and Services interviewed C.P., presumably due to these crimes.

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impeachment purposes the use of drugs or alcohol at other irrelevant times.

Commonwealth v. Harris, 852 A.2d 1168, 1174 (Pa. 2004) (emphasis in

original). Herein, there is no indication whatsoever that the victim was

under the influence at any time relevant to her testimony. Instead,

Appellant sought to introduce this evidence to generally besmirch C.P.’s

character. The trial court properly ended that line of inquiry.

Appellant’s fourth issue claims that the trial court improperly seated

five jurors: numbers five, nine, ten, eleven, and twelve. He suggests that all

of these jurors should have been struck for cause, but develops no argument

whatsoever to support that allegation with the exception of juror number

ten. We could find waiver on this basis, but decline to do so as our

discussion of juror number ten requires us to set forth the principles that

apply to all of his challenges.

Jurors should be disqualified for cause where “they do not have the

ability or willingness to eliminate the influences under which they are

operating and therefore cannot render a verdict according to the evidence.”

Commonwealth v. Robinson, 864 A.2d 460, 489 (Pa. 2004). The decision

to disqualify a juror on these grounds “rests within the sound discretion of

the trial court, must be based upon the juror's answers and demeanor, and

will not be reversed in the absence of a palpable abuse of this discretion.”

Id. at 489 (citation omitted). Thus, the decision to accept or deny removal

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for cause obviously depends on the issue being brought to the court’s

attention in the first place. “The challenge of a juror for cause is addressed

to the trial judge, and much weight must be given to his judgment in

passing upon it.” Id. at 490.

Turning to juror number ten, Appellant suggest that the trial judge has

a duty to sua sponte remove a juror for cause when the judge knows the

juror. Herein, the judge informed the parties of their limited relationship,

stating that he and the juror had litigated a medical malpractice case against

each other prior to the judge’s election. The juror stated that the past

relationship would have no bearing on his ability to serve as a fair and

impartial juror. Additionally, counsel asked the judge if the two socialized,

to which the trial court said no. Appellant then accepted the juror. While

the fact a juror “has such a close relationship . . . with the . . . court” is a

reason to grant a challenge for cause, Robinson, supra at 489-90,

Appellant cites no authority for the proposition that a trial court may

somehow interfere with strategic decisions for accepting or rejecting a juror.

Thus, we find that since Appellant accepted juror number ten, he has

waived any claim that the court improperly seated him. The same applies to

juror numbers five, eleven, and twelve, all of whom he accepted without

moving to strike for cause. N.T. Jury Selection, 5/20/13, at 43, 119, 127.

Relatedly, Appellant maintains that the trial court improperly permitted

juror number nine to serve. Unlike the jurors discussed supra, Appellant did

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move to strike this juror for cause, which the court denied. Appellant’s

counsel stated, “I still have a motion for cause, if not, I’m going to use a

[peremptory] strike.” Id. at 103. The trial court denied the motion for

cause with explanation. Id. at 103-04. Appellant’s counsel then stated,

“After conferring with my client, we’re going to accept.” Id. at 104.

Appellant has failed to address the effect of this action and why he has not

forfeited any allegation of error respecting the failure to strike this juror.

See Commonwealth v. Frazier, 369 A.2d 1224, 1231, n.4 (Pa. 1977) (“It

is difficult to understand how a party can object to the acceptance of a juror

where that party possessed peremptory challenges and failed to exercise

them.”). We therefore deem this claim forfeited.

Appellant’s fifth argument claims that the trial court improperly

permitted the jury to receive a transcript of the Commonwealth’s expert

witness’s testimony. Appellant has failed to distinguish the expert’s report

from her testimony, as explained by the trial court’s opinion:

Defendant's fifth issue on appeal is a clear misrepresentation of the proceedings and inaccurately refers to several exhibits admitted into evidence. This issue is without basis and should be dismissed on appeal, as this Court did not permit the jury to receive a transcript of the trial testimony of Dr. Maria McColgan, the Commonwealth's medical expert witness, as doing so would clearly violate Pa.R.Crim.P 646(C).

To the contrary, this Court, with defendant's counsel's consent and agreement, did permit the jury to review a redacted copy of Dr. McColgan's expert report during their deliberations. This instance arose from Juror Question #2 "We would like to see two Commonwealth exhibits; the medical expert and the report of

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the forensic interview form, PCA." N.T., 05 -23 -2103, P. 4, L. 4 -8. After reviewing this question with both defense counsel and counsel for the Commonwealth, the following discussion occurred out of the jury's presence: ....

No error was committed by this Court, nor was any alleged error raised by defendant's counsel at the time. To the contrary, counsel stipulated on the record to the evidence to be reviewed by the jury during its deliberations.

Trial Court Opinion, 3/21/16, at 15-18. We agree. Since counsel for both

parties and the trial court jointly agreed to provide the exhibits, and

Appellant consented to that action, the trial court did not err. Compare

Commonwealth v. Woodard, 129 A.3d 480 (Pa. 2015) (discussing

submission of expert reports to the jury for deliberation where defense

counsel objects).

Appellant’s sixth issue grandly asserts that the Commonwealth

“orchestrated the proceedings by a deliberate deception of the court and

jury[.]” He cites Brady v. Maryland, 373 U.S. 83 (1963), but does not link

those principles to any inaction or action by the Commonwealth. Instead,

Appellant’s argument is a variation of the argument discussed infra: that the

absence of physical trauma meant that no rape occurred. “From (ALL THE

EVIDENCE ON THE RECORD), an (U[N]BIAS[ED] TRIER of FACTS) Would See

That The District Attorney Was Orchestrating The Proceedings.” Appellant’s

brief at 23. This undeveloped and unsubstantiated argument results in

waiver. See Commonwealth v. Freeman, 128 A.3d 1231, 1249

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(Pa.Super. 2015) (“[Appellant] has made no effort whatsoever to discuss the

applicable law or to link the facts of his case to that law. His failure to

develop a coherent legal argument in support of his claim results in waiver

of this issue.”).

We now discuss Appellant’s challenge to the sufficiency of the

evidence. Appellant claims that the lack of physical trauma renders the rape

“physically impossible,” Appellant’s brief at 26, and that any conviction was

based on mere conjecture. Whether the evidence is sufficient to support the

conviction presents a matter of law; our standard of review is de novo and

our scope of review is plenary. Commonwealth v. Walls, 144 A.3d 926,

931 (Pa.Super. 2016) (citation omitted). In conducting our inquiry, we

examine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, support the jury's finding of all the elements of the offense beyond a reasonable doubt. The Commonwealth may sustain its burden by means of wholly circumstantial evidence.

Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015). Herein, the

victim testified that Appellant followed her after a shower, touched her

vagina with his penis, and inserted his penis into her anus. This testimony

clearly satisfies the elements of the rape by forcible compulsion offense.

Commonwealth v. Gonzalez, 109 A.3d 711, 720 (Pa.Super. 2015) (“The

Crimes Code defines rape in pertinent part as follows: “A person commits a

felony of the first degree when the person engages in sexual intercourse

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with a complainant . . . by forcible compulsion.”). Contrary to Appellant’s

argument, physical trauma is not an element of the crime. See

Commonwealth v. Minerd, 753 A.2d 225 (Pa. 2000) (Commonwealth

permitted to present, in its case-in-chief, expert testimony that lack of

physical trauma does not disprove rape is permissible in Commonwealth’s

case-in-chief; jurors may naturally expect physical trauma). Moreover, the

victim’s testimony standing alone is sufficient to convict. “A rape victim’s

uncorroborated testimony to penal penetration is sufficient to establish

sexual intercourse and thus support a rape conviction.” Commonwealth v.

Wall, 953 A.2d 581, 583 (Pa.Super. 2008). Accordingly, sufficient evidence

supported the rape verdict.

Appellant also purports to challenge the weight of the evidence. He

largely repeats the same argument presented in connection with his

sufficiency claim. Specifically, he maintains that the lack of physical trauma

renders rape impossible, and highlights the following testimony presented at

trial in his defense. Appellant’s coworker testified that Appellant was at

work on January 3, 2012, the date supplied to Officer Johnson by B.P. as the

date of the crime. Appellant also introduced a copy of B.P.’s mother’s lease,

which showed that the family had moved from their residence in late 2011.

Therefore, in addition to rape being “physically impossible”, Appellant urges

us to find that this evidence is conclusive proof that the rape could not have

occurred at the mother’s house in January of 2012.

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Appellant properly preserved this issue in a post-sentence motion and

the trial court addressed the claim. Commonwealth v. Stiles, 143 A.3d

968, 980 (Pa.Super. 2016) (“[A] defendant must present his challenge to

the weight of the evidence to the trial court for a review in the first

instance.”). The trial court rejected the claim, finding that the jury weighed

all of this testimony and that the verdict was not so contrary as to shock

one’s sense of justice. In reviewing this conclusion, we do not review the

underlying weight of the evidence claim; instead, we review the judge’s

exercise of discretion in ruling on the claim. “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.”

Commonwealth v. Smith, 146 A.3d 257, 264–265 (Pa. Super. 2016)

(citation omitted).

We discern no such abuse of discretion. To the extent Appellant’s

argument regarding the specific date of the crime goes to weight, and not

sufficiency, the Commonwealth is not required to establish the precise date

in general, but must “fix the date when an alleged offense occurred with

reasonable certainty[.]” Commonwealth v. Jette, 818 A.2d 533, 535

(Pa.Super. 2003) (citation omitted). Thus, the Commonwealth is given

some leeway in general, and that principle applies with even greater force

when the victim is a child.

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When a young child is a victim of crime, it is often impossible to ascertain the exact date when the crime occurred. He or she may only have a vague sense of the days of the week, the months of the year, and the year itself. If such children are to be protected by the criminal justice system, a certain degree of imprecision concerning times and dates must be tolerated.

Luktisch, supra at 880 (quoting Commonwealth v. Groff, 548 A.2d 1237,

1242 (Pa.Super. 1988)). Accordingly, the trial court committed no abuse of

discretion in denying the weight claim.

Finally, we agree that Appellant is entitled to relief on his sentencing

claim. He received a mandatory minimum sentence pursuant to 42 Pa.C.S.

§ 9718, which was subsequently declared unconstitutional by Wolfe, supra.

While the trial judge imposed a sentence higher than the mandatory

minimum, the court’s sentencing scheme may be disrupted. Hence, we

vacate judgment of sentence at all counts and remand for resentencing.

Judgment of sentence is vacated and the matter is remanded for

resentencing. Appellant’s convictions are affirmed in all other respects.

Jurisdiction relinquished.

Judge Moulton joins the memorandum.

President Judge Emeritus Stevens files a concurring memorandum in

which Judge Bowes joins.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/22/2017

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