Opinion
J-S44007-17 No. 3690 EDA 2015 No. 3691 EDA 2015
11-21-2017
COMMONWEALTH OF PENNSYLVANIA, Appellee v. HECTOR G. GONZALES, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered July 31, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013380-2013 Appeal from the Judgment of Sentence Entered July 31, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013381-2013 BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J. MEMORANDUM BY BENDER, P.J.E.:
Appellant, Hector G. Gonzales, appeals from the judgment of sentence of an aggregate term of 21 to 42 years' incarceration, imposed after he was convicted, in two separate cases, of various crimes including attempted rape by forcible compulsion and unlawful restraint. Appellant challenges the discretionary aspects of his sentence, as well as the sufficiency and weight of the evidence to sustain his convictions. After careful review, we find no merit to those claims. However, we sua sponte determine that the portion of the court's July 31, 2015 sentencing order that deems Appellant a Sexually Violent Predator (SVP) under the Sexual Offender Registration and Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10-9799.41, is illegal. Therefore, we vacate in part, affirm in part, and remand for further proceedings.
On December 28, 2015, this Court issued a per curiam order that sua sponte consolidated Appellant's appeals in each of his two cases.
The trial court summarized the facts of Appellant's case, as follows:
At trial, the Commonwealth of Pennsylvania established that [Appellant] initially accosted two females, [C.Q.] and [M.R.], who were strangers to him, as they walked through a park near 3rd & Cumberland Streets in Philadelphia on July 1, 2013, around 11 p.m. Specifically, [C.Q.] testified that she received a phone call earlier from her friend [M.R.] asking to meet for a night out at a local pub. [M.R.] stopped at [C.Q.'s] house and waited downstairs. [C.Q.] further testified that she witnessed [M.R.] ingest two Xanax pills, which were prescribed to her. These two friends walked to a bar in the neighborhood, where they each drank a shot and a beer. When these two females later passed the bar, a male on a bike approached them along North Fourth Street. [C.Q.] unequivocally identified this male in the courtroom as [Appellant]. She explained that [Appellant] kept following them as they walked through the
park. He offered a cigarette, to which [C.Q.] quickly replied[,] "no, and get away."
[C.Q.] testified [that Appellant] stated that he was "trying to have fun," and repeatedly suggested that he and they engage in a "threesome," and made repeated foul mouthed sexual requests. [Appellant] ignored the women's entreaties to leave them alone and their clear statements that they were not interested in his crude sexual advances. [C.Q.] informed him that they were not interested in the attention of any males. [Appellant] then became aggressive with her friend, [M.R.], and began touching her on her hands and breast.
[Appellant] continued to badger both women, "talking dirty," and stating that he wanted to have a three-way orgy. [Appellant] walked up to [C.Q.], grabbed her shoulder, [and] felt her breast. She immediately pushed him away. [C.Q.] stated to leave [M.R.] alone because she was messed up because of the Xanax and alcohol. She clearly voiced to him that he should leave the area entirely and go to where the prostitutes were available. [C.Q.] started walking away, towards the bar, to alert her friends to help them. When [C.Q.] returned with her friends, she witnessed [Appellant], with his pants down, pounding [his body] on top of [M.R.] as she lay on the ground struggling and yelling to fend him off of her. [C.Q.] and her two friends "O" and "Black" started pulling [Appellant] off of [M.R.]; [Appellant's] underwear was down to his ankles. [M.R.'s] pants had been pulled down her legs and her underwear [was] ripped. She was hysterical.
[M.R.'s] testimony at trial strongly corroborated her friend's recollection of events that evening. [M.R.] testified that when [C.Q.] walked away to meet their friends, [Appellant] jumped on top of her and pulled [her] to the ground in a park area. She testified that [Appellant] pulled out his penis, and attempted to insert his penis in her mouth and tried to go in her pants. [M.R.] testified that she had a few drinks that night, as well as her prescribed Xanax, and had subsequent difficulties with her memory, but that those circumstances did not prohibit her from recalling material facts as she recalled events of that night.
[M.R.] also testified that [Appellant], while his hands were in her pants, ripped her underwear and pulled them down to her ankles. She clearly recalled flailing her arms to try to stop him
and yelling. When her friends returned they pulled [Appellant] off of her as she struggled on the ground. [Appellant] ran down an alley way [sic] naked, with [C.Q.] friends in hot pursuit. When [Appellant] entered a house, multiple people called police reporting a naked man sitting on the steps of a home in the 2600 block of Orianna Street.
Philadelphia Police Officer Jason Judge credibly testified to responding to a radio call that dispatched him to the area of 3rd and Cumberland Streets in Philadelphia. Upon arrival[,] he was approached by two upset women who had excitedly reported that [Appellant] approached them and attempted to sexually assault them after [they had] rebuffed ... his unwanted advances. They and other person[s] directed the responding officers toward the 2600 block of Orianna Street as the path of [Appellant's] flight.
Police Officer Judge testified that the complainant, [M.R.], told him that a male, who was a complete stranger to her[,] sexually assaulted her by attempting to penetrate her vagina, and that she had tried to fight him. She told him that the male then attempted to place his penis in her mouth. Officer Judge further testified that [M.R.'s] clothes were disheveled, ripped and torn, and that she appeared to be visibly distraught.
Philadelphia Police Officer Cyprian Scott, of the Philadelphia Police SWAT Team, testified that he and his team were called to a report of a male barricaded inside 2628 North Orianna Street, Philadelphia, PA[], which was located a block and one-half from the reported sexual assault location. Officer Scott further testified that upon arriving at the house, he was informed that the male inside had been chased by citizens after committing a sexual assault. The male inside, later identified as [Appellant], rebuffed requests by SWAT members to peaceably exit the property for three hours before the SWAT team made forcible entry into the property. Officer Scott stated that orders were given to break through the front door.
Once inside the residential property, officers cleared the first floor and heard [Appellant] moving upstairs in a second floor bedroom. [Appellant] yelled to the officers that he would ... come down the stairs as long as his dog was unharmed. Per direction, [Appellant] placed the pit bull terrier into a second floor bedroom where [the dog] remained unharmed. [Appellant]
was finally subdued and arrested after positive identifications were made from the victims.Trial Court Opinion (TCO), 11/16/16, at 4-7 (citations to the record omitted).
To protect the privacy of the victims in this case, we have changed their names to initials.
Appellant was charged with various offenses stemming from the above-stated facts, and he proceeded to a jury trial in March of 2015. On March 19, 2015, the jury convicted him of attempted rape by forcible compulsion, 18 Pa.C.S. §§ 901, 3121(a)(1); attempted involuntary deviate sexual intercourse by forcible compulsion, 18 Pa.C.S. §§ 901, 3123(a)(1); unlawful restraint - serious bodily injury, 18 Pa.C.S. § 2902(a)(1); indecent exposure, 18 Pa.C.S. § 3127(a); and indecent assault by forcible compulsion, 18 Pa.C.S. § 3126(a)(2). Following the preparation of a presentence report and mental health evaluation, a combined sentencing and sexually violent predator (SVP) hearing was conducted on July 31, 2015. At the conclusion thereof, the court imposed an aggregate sentence of 21 to 42 years' incarceration, and determined that Appellant is an SVP.
Appellant filed a timely post-sentence motion which was denied on December 4, 2015. Appellant then filed a timely notice of appeal, and also timely complied with the trial court's order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Herein, Appellant presents three issues for our review:
I. Whether [Appellant's] sentence was manifestly excessive[?]
II. Whether the evidence was sufficient as a matter of law to convict [Appellant] of criminal attempt - rape by forcible compulsion...[?]
III. Whether the verdict was against the weight of the evidence[?]Appellant's Brief at 8.
Appellant's first issue is a challenge to the discretionary aspects of his sentence.
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 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 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.[] § 9781(b).
Commonwealth v. Evans , 901 A.2d 528, 533 (Pa. Super. 2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (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), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).Commonwealth v. Griffin , 65 A.3d 932, 935 (Pa. Super. 2013) (quoting Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010)).
The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. Commonwealth v. Paul , 925 A.2d 825, 828 (Pa. Super. 2007). A substantial question exists "only when the appellant advances a colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process." Sierra , supra at 912-13.
Here, Appellant filed a timely notice of appeal, he preserved his sentencing challenge in a post-sentence motion, and he has presented a Rule 2119(f) statement in his appellate brief. Thus, we must determine if he has raised a substantial question for our review. In his Rule 2119(f) statement, Appellant argues that,
[t]he aggregate sentence of twenty-one (21) to forty-two (42) years of imprisonment imposed by the sentencing judge is manifestly excessive. The sentence is manifestly excessive[] because it constitutes too severe a punishment and is grossly disproportionate to the crimes, particularly in light of the facts surrounding the criminal episode. Moreover, the sentencing judge did not expressly or implicitly consider the general standards applicable to sentencing found in 42 Pa.C.S. § 9721, i.e., the protection of the public; the gravity of the offense in relation to the impact on the victim and the community; and the rehabilitative needs of [Appellant]. Based on the forgoing, [Appellant's] sentence is "clearly unreasonable."Appellant's Brief at 15 (internal citations omitted).
While Appellant presents relatively boilerplate claims in his Rule 2119(f) statement, we will nevertheless consider his assertions as constituting substantial questions for our review. See Commonwealth v. Derry , 150 A.3d 987, 992 (Pa. Super. 2016) ("An averment that 'the trial court failed to consider relevant sentencing criteria, including the protection of the public, the gravity of the underlying offense and the rehabilitative needs of [the a]ppellant, as 42 Pa.C.S.[] § 9721(b) requires[,]' presents a substantial question for our review in typical cases.") (citations omitted); Commonwealth v. Malovich , 903 A.2d 1247, 1253 (Pa. Super. 2006) ("[C]laims that a penalty is excessive and/or disproportionate to the offense can raise substantial questions.").
However, we conclude that Appellant's substantive arguments are meritless. Essentially, he claims that the court focused on only his criminal history and the gravity of his offenses, and ignored other factors such as his learning disability, low I.Q., and rehabilitative needs. According to Appellant, the court did not impose an individualized sentence, and the aggregate term fashioned by the court was "clearly unreasonable." Appellant's Brief at 18.
Appellant also avers that the court failed to state adequate reasons for the sentence it imposed. However, we will not review this claim, as it was not presented in Appellant's Rule 2119(f) statement.
In rejecting Appellant's sentencing challenge, the trial court initially concluded that he had failed to present a substantial question for our review. For the reasons stated supra, we disagree. However, the court went on to provide an alternative analysis of the merits of Appellant's claims, finding his arguments unpersuasive. See TCO at 10-17. Having reviewed the court's thorough and well-reasoned analysis in this regard, we conclude that it adequately addresses the arguments Appellant presents on appeal. Accordingly, we adopt that portion of the trial court's assessment of Appellant's sentencing claim as our own, see id., and we deem his first issue meritless for the reasons set forth therein.
Likewise, the trial court provides an accurate analysis of Appellant's remaining two issues, in which he challenges the sufficiency and weight of the evidence to sustain his convictions. See id. at 17-20. We conclude that the court's discussion disposes of the arguments Appellant raises herein. Therefore, we also adopt that portion of the trial court's decision as our own, and reject Appellant's second and third issues on the grounds set forth therein.
However, we add a brief note to the trial court's analysis of Appellant's challenge to the sufficiency of the evidence to support his conviction of attempted rape. In his brief to this Court, Appellant focuses his sufficiency argument on contending that "[t]here was no testimony that [his] penis was ever near [the victim's] vagina." Appellant's Brief at 20. However, C.Q. testified that when she saw Appellant on top of M.R., "it looked like he was trying to put his penis inside her vagina." N.T. Trial, 3/18/15, at 46. C.Q. also testified that M.R. was on her back with Appellant on top of her, and his pants and underwear were down to his ankles. Id. M.R.'s pants were down to her knees and her underwear was ripped. Id. While Appellant acknowledges C.Q.'s testimony, he claims it was insufficient to support his rape conviction because the victim, M.R., did not herself testify that Appellant "was trying to force his penis inside of her." Appellant's Brief at 21. We disagree. C.Q.'s eyewitness account of the incident was adequate for the factfinder to conclude, beyond a reasonable doubt, that Appellant was attempting to force his penis into the victim's vagina while he was naked on top her. Moreover, any difference between C.Q.'s testimony and M.R.'s goes to the weight of the evidence, not the sufficiency. Therefore, Appellant's argument in this regard is meritless. --------
However, we are compelled to sua sponte vacate an illegal aspect of Appellant's sentence, namely, the portion of the sentencing order deeming him an SVP. See Commonwealth v. Butler , No. 1225 WDA 2016, *6 (Pa. Super. filed Oct. 31, 2017) (concluding that the issue discussed, infra, implicates the legality of a defendant's sentence). In Commonwealth v. Muniz , 164 A.3d 1189 (Pa. 2017), our Supreme Court held that the registration requirements under SORNA constitute criminal punishment, thus overturning prior decisions deeming those registration requirements civil in nature. Id. at 1218. On October 31, 2017, this Court ruled that,
since our Supreme Court has held [in Muniz ] that SORNA registration requirements are punitive or a criminal penalty to which individuals are exposed, then under Apprendi [ v. New Jersey , 530 U.S. 466 (2000),] and Alleyne [ v. United States , 133 S.Ct. 2151, 2163 (2013)], a factual finding, such as whether a defendant has a "mental abnormality or personality disorder that makes [him or her] likely to engage in predatory sexually violent offenses[,]" 42 Pa.C.S.[] § 9799.12, that increases the length of registration must be found beyond a reasonable doubt by the chosen fact-finder. Section 9799.24(e)(3) identifies the trial court as the finder of fact in all instances and specifies clear and convincing evidence as the burden of proof required to designate a convicted defendant as an SVP. Such a statutory scheme in the criminal context cannot withstand constitutional scrutiny.Butler , No. 1225 WDA 2016, at *11. Accordingly, the Butler panel held that 42 Pa.C.S. § 9799.24(e)(3) is unconstitutional. Id. at *11-12.
In light of Butler , we are compelled to conclude that the portion of Appellant's sentencing order deeming him an SVP is illegal. See id. at *12. Accordingly, we vacate only that aspect of Appellant's judgment of sentence, and remand his case for the trial court to determine under what tier of SORNA Appellant must register, and to provide him with the appropriate notice of his registration obligations under 42 Pa.C.S. § 9799.23. See id. at *13.
SVP Order reversed. Judgment of sentence affirmed in all other respects. Case remanded. Jurisdiction relinquished. Judgment Entered. /s/ _________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/21/2017
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