Commonwealth v. Diaz

152 A.3d 1040, 2016 Pa. Super. 291, 2016 Pa. Super. LEXIS 764
CourtSuperior Court of Pennsylvania
DecidedDecember 16, 2016
DocketNo. 3165 EDA 2015
StatusPublished
Cited by50 cases

This text of 152 A.3d 1040 (Commonwealth v. Diaz) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Diaz, 152 A.3d 1040, 2016 Pa. Super. 291, 2016 Pa. Super. LEXIS 764 (Pa. Ct. App. 2016).

Opinion

OPINION BY

OTT, J.:

Harnett Diaz appeals from the judgment of sentence imposed on May 28, 2015, in the Monroe County Court of Common Pleas. The trial court sentenced Diaz to an aggregate term of 12 to 24 years’ imprisonment following his jury conviction of rape of an unconscious person,1 corruption of minors,2 and related charges for the sexual assault of his stepdaughter’s 17-year-old friend. On appeal, Diaz challenges both the sufficiency' and weight of the evidence supporting his convictions, as well as the trial court’s imposition of a mandatory minimum sentence.3 Because we conclude the trial court erred in determining Diaz had committed a prior crime of violence justifying the imposition of his mandatory minimum sentence, we vacate the judg[1042]*1042ment of sentence in part and remand for resentencing. In all other respects, we affirm the convictions.

The facts underlying Diaz’s conviction are aptly summarized by the trial court as follows:

[Diaz] is the stepfather of K.C., a 15 year old female. K.C. has a 17 year old Mend, K.O., who is the victim (hereinafter referred to as “Victim” ...). On October 19, 201[3], at around 12:00 p.m., [Diaz] drove K.C. and Victim from Blak-eslee, Monroe County, Pennsylvania to New York City, NY, so that K.C. and Victim could get their nails done. During the drive, [Diaz] furnished K.C. and Victim with alcohol. [Diaz] also drank alcohol. While in New York when K.C. was getting her nails done, [Diaz] and Victim went to a liquor store in order to purchase more alcohol.
After K.C. and Victim were finished with their nails, [Diaz], K.C., and Victim headed back to Pennsylvania. Upon returning to Pennsylvania, they stopped at a Burger King restaurant for Victim to use the bathroom. Victim was so intoxicated, she required assistance walking to and using the bathroom. Around 11:00 p.m., [Diaz], K.C. and Victim arrived back at [Diaz] and KC.’s home in Blak-eslee. When they arrived at the home, [Diaz] sent K.C. into the house to see if KC.’s mother, [Diaz’s] wife, was awake.
After K.C. went into the house, [Diaz] drove off with the Victim to a secluded service road. At this point, Victim began zoning in and out. After pulling onto the service road, Victim recalls [Diaz] getting out of the minivan, opening the trunk door, [and] laying out the backseat. [Diaz] then called Victim to move to the back of the minivan. When Victim moved to the back of the minivan she hit her head. The next thing Victim recalls she was lying on her back in the rear of the minivan. Victim then remembers [Diaz] putting his mouth on her vagina. Victim recalls [Diaz] putting his penis in her vagina. She testified that she was in and out of consciousness and that she was so intoxicated she was slurring her words and unable to speak.
[Diaz] and Victim arrived back at [Diaz] and KC.’s house and she was unable to walk. [Victim] stated she “crawled” up the stairs. When Victim entered the house, she was crying and she immediately told K.C. that she and [Diaz] had driven down the mountain and she believed “something may have happened.” K.C. then helped Victim wash up, get changed, and get into bed.
Victim later woke up around 4:00 a.m. on October 20, 2014, and told K.C. that she thought [Diaz] had sex with her. K.C. confirmed that Victim had come back to the house crying. Victim then called her ex-boyfriend about the incident. Victim’s ex-boyfriend told his mother; the ex-boyfriend’s mother called Victim’s mother who called the police. Victim’s mother then drove to [Diaz’s] house and waited with Victim until the police arrived. The police arrived with an ambulance and Victim was transported to the hospital.

Trial Court Opinion, 10/2/2015, at 1-3.

Diaz was subsequently arrested and charged with numerous sexual offenses based on his assault of the victim, both while she was intoxicated and without her consent. On February 12, 2015, a jury returned a verdict of guilty on the charges of rape (unconscious person), unlawful contact with minor, sexual assault, aggravated indecent assault (without consent), indecent assault (without consent and unconscious person), corruption of minors (two counts), furnishing liquor to minors (two counts) and endangering the welfare of a [1043]*1043child.4 . The jury found Diaz not guilty of involuntary deviate sexual intercourse.5

On February 13, 2015, the Commonwealth provided Diaz with notice of its intent to seek a 25-year mandatory minimum sentence pursuant to 42 Pa.C.S. § 9714(a)(2) on the rape conviction.6 Specifically, the Commonwealth averred Diaz had been convicted of two prior crimes of violence: (1) a 1998 New York conviction for attempted robbery 3rd degree; and (2) a 2001 federal conviction for conspiracy to commit robbery and use of a firearm. See Notice of Mandatory Sentencing Pursuant to 42 Pa,C.S. § 9714, 2/13/2015, at ¶¶ 7-8. At the May 28, 2015, sentencing hearing, the trial court found the Commonwealth failed to establish Diaz’s New York conviction constituted an equivalent crime of violence under Section 9714. See N.T., 5/28/2015, at 20. Nevertheless, the court concluded that Diaz’s federal conviction was an equivalent prior crime of violence, and, pursuant to Section 9714(a)(1), sentenced him to a mandatory minimum term of 10 to 20 years’ imprisonment for the charge of rape. In addition, the trial court imposed two consecutive terms of one to two years’ imprisonment for the charges of corruption of minors, and concurrent terms of eight to 16 years’ imprisonment and-18 to 36 months’ imprisonment for the charges of unlawful contact with minor and endangering the welfare of a child; respectively. The court found the remainder of Diaz’s convictions merged for sentencing purposes.

On June 4, 2015, Diaz' filed a timely post-sentence motion seeking reconsideration of his sentence, and challenging the weight and sufficiency of the evidence supporting the jury’s verdict. The trial court entered an order on October 2, 2015, denying Diaz’s motion, and . this timely appeal follows.7

Diaz first argues the evidence was insufficient to support his conviction of the sexual offenses. Specifically, he argues the Commonwealth failed to prove the victim was either “unconscious or unaware that sexual activity was occurring.” Diaz’s Brief at 27.

Our review of a-challenge to'the sufficiency of the evidence is guided by the following:

There is sufficient evidence to sustain a conviction when the evidence admitted at trial, and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict-winner, are sufficient to enable the fact-finder to conclude that the Commonwealth established all of the elements of the offense beyond a reasonable doubt. The Commonwealth may sustain its burden “by means of wholly circumstantial evidence.” Further, we note that the entire trial record is evalu[1044]*1044ated and all evidence received against the defendant is considered, being cognizant that the trier of fact is free to believe all, part, or none of the evidence.

Commonwealth v. Martin, 627 Pa. 623, 101 A.3d 706, 718 (2014) (internal citation omitted), cert. denied, — U.S. -, 136 S.Ct. 201, 193 L.Ed.2d 155 (2015).

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Cite This Page — Counsel Stack

Bluebook (online)
152 A.3d 1040, 2016 Pa. Super. 291, 2016 Pa. Super. LEXIS 764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-diaz-pasuperct-2016.