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Full Opinion
J-S78026-14
2015 PA Super 13
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID JOSEPH GONZALEZ
Appellant No. 448 MDA 2014
Appeal from the Judgment of Sentence December 18, 2013
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0001103-2011
BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.
OPINION BY JENKINS, J.: FILED JANUARY 21, 2015
David Gonzalez met K.M., a cerebral palsy patient,1 on a Christian
dating website. On March 8, 2011, after dating for several months, they had
sexual intercourse. K.M. claimed that Gonzalez raped her; Gonzalez claimed
that she consented to intercourse. The jury believed K.M. and found
Gonzalez guilty of rape,2 aggravated indecent assault3 and sexual assault.4
The trial court sentenced Gonzalez to an aggregate sentence of 4-15 yearsâ
imprisonment. Gonzalez filed a motion for post-trial relief and timely post-
____________________________________________
1
We will refer to K.M. either as âK.M.â or âthe victimâ.
2
18 Pa.C.S. § 3121.
3
18 Pa.C.S. § 3125.
4
18 Pa.C.S. § 3124.1.
J-S78026-14
sentence motions, all of which the trial court denied, and then a timely
notice of appeal. Both Gonzalez and the trial court complied with Pa.R.A.P.
1925. For the reasons articulated below, we affirm.
Gonzalez raises six issues in this direct appeal:
I. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE
VERDICTS OF GUILT AS TO THE CRIMES OF RAPE,
AGGRAVATED INDECENT ASSAULT AND SEXUAL
ASSAULT[,] AS THE COMMONWEALTH FAILED TO
PROVE [GONZALEZâS] GUILT BEYOND A
REASONABLE DOUBT.
II. THE VERDICTS OF GUILT AS TO THE CRIMES OF
RAPE, AGGRAVATED INDECENT ASSAULT AND
SEXUAL ASSAULT ARE AGAINST THE WEIGHT OF
THE EVIDENCE.
III. THE PRETRIAL COURT ERRED WHEN IT DENIED
A MOTION IN LIMINE TO PRECLUDE THE
INTRODUCTION OF THE AUDIO TAPE OF [K.M.âS]
STATEMENT.
IV. THE PRETRIAL COURT ERRED WHEN IT BARRED
TESTIMONY CONCERNING THE MENTAL HEALTH
DIAGNOSES OF [K.M.]
V. THE TRIAL COURT ERRED WHEN IT ALLOWED THE
COMMONWEALTH TO READ THE CONTENTS OF
[K.M.âS] PRELIMINARY HEARING TESTIMONY.
VI. THE SENTENCES IMPOSED ARE UNREASONABLE,
EXCESSIVE AND NOT REFLECTIVE OF [GONZALEZâS]
CHARACTER, HISTORY AND CONDITION.
Gonzalezâs first argument is a challenge to the sufficiency of the
evidence. Our standard of review for such challenges is well-settled:
[W]hether[,] viewing all the evidence admitted at
trial in the light most favorable to the
[Commonwealth as the] verdict winner, there is
-2-
J-S78026-14
sufficient evidence to enable the fact-finder to find
every element of the crime beyond a reasonable
doubt. In applying [the above] test, we may not
weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts
and circumstances established by the
Commonwealth need not preclude every possibility
of innocence. Any doubts regarding a defendantâs
guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a
matter of law no probability of fact may be drawn
from the combined circumstances. The
Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence.
Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa.Super.2003) (citations
omitted).
The trial court recounts the evidence adduced at trial as follows:5
The above convictions arose out of an incident that
occurred on March 8, 2011. The victim was twenty-
five years old at the time and suffers from cerebral
palsy. Her cerebral palsy causes her to have
âstiffness and tightening of the musclesâ in her legs
and she needs crutches to walk. She testified that if
she were lying on the floor, she could pull herself up
if she had something to pull herself up on. When
asked whether she could bend her knees normally,
she testified â[n]ot on my own. If I had to bend my
knees, I would either need to use my hands or have
someone to help me.â When asked if she could
easily spread her legs apart, she responded, â[n]o,â
and said â[t]hey have to be pushed apart.â The
victim also testified that âI can't spread my legs far
____________________________________________
5
The narrative in the trial court opinion has 73 citations to the record. For
convenience, we group these citations into footnotes 6-14 below.
-3-
J-S78026-14
enough to get [a tampon] in,â and has to use pads
during her period.6
The victim and [Gonzalez] met each other on a
Christian dating website in August 2010. They met in
person in September of that year, but [Gonzalez]
soon left the area to pursue a position as a youth
minister in New York. They reestablished a
relationship when he returned in December 2010,
and began seeing each other. On March 7, 2011,
[Gonzalez] picked up the victim and took her to the
mall. They discussed their religious beliefs, and the
victim testified that âI had told [Gonzalez] that I was
a virgin and didnât plan on having sex before I was
married.â She further testified that he responded by
saying âsomething along the lines. . .of praise the
Lord.â She also said that he told her he was not a
virgin. That evening, they kissed and hugged. The
victim also testified that [Gonzalez] asked her to be
his girlfriend, and she agreed7.
On March 8, 2011, [Gonzalez] picked up the victim
from her physical therapy appointment around 2:30
p.m. They stopped to get food and went to
[Gonzalez]âs apartment to watch a movie. This was
the first time the victim had been to [Gonzalez]âs
apartment. They sat down on the couch and began
watching the movie. The victim testified that she
started kissing [Gonzalez] and they both began
touching and rubbing one anotherâs genitals over
their clothes. This lasted for about half an hour.
Eventually, the victim noticed that [Gonzalez] was
erect. Next, the victim testified that [Gonzalez]
asked her if she wanted to go to the bedroom, to
which she agreed. The victim âassumed that we
would continue doing what we were doing in the
living room in the bedroom. . .[b]ecause . . .
[Gonzalez] knew that I didnât want to have sex
____________________________________________
6
N.T., 9/3/13, pp. 58-62, 77.
7
N.T., 9/3/13, pp. 64-71.
-4-
J-S78026-14
before I was married.â Before they moved, the
victim testified that [Gonzalez] took her phone out of
a pouch connected to her jeans and placed it on a TV
tray in the living room. The victim then got her
crutches, got off the couch, and walked to
[Gonzalez]âs bedroom. Once in the bedroom, she
noticed a bare mattress against the wall with no
furniture surrounding it. [Gonzalez] then either
helped her sit on the mattress or she sat down
herself. The victim testified that [Gonzalez] âtook my
crutches [and] put them out of reach. I didnât see
exactly where he put them. But I know it was out of
reach.â The victim lay down by herself. When asked
âis there any way you could have gotten up from that
point?â She responded âno.â8
The victim testified that [Gonzalez] then removed
her jeans and underwear, and lay on top of her. The
victim did not say anything while [Gonzalez] took off
her pants and underwear, but when he lay on top of
her, she said âno, donât.â When he lay on top of her,
her legs were flat, straight, and unopened because âI
canât open my legs by myself.â 9
Next, the victim testified that [Gonzalez] got on his
knees and forced her legs apart âwith his hands and
put them on his shoulders. And he had his hands
cuffed around my ankles.â She testified that â[h]e put
my ankles around his shoulders.â âHe bent [her
knees] because they were up on his shoulders.â She
then felt his penis inside her, and she âkept saying
ow.â [Gonzalez] told the victim she âhad to be quiet.â
The victim testified that at some point [Gonzalez]
took her legs off his shoulders and put his finger in
her vagina. He then put her legs back on his
shoulders and penetrated her again with his penis.
The victim was asked if she tried at all to kick off
[Gonzalez] during the penetration. She responded, âI
____________________________________________
8
N.T., 9/3/13, pp. 71-79, 120-122, 132-134, 162.
9
N.T., 9/3/13, pp. 79-82, 123.
-5-
J-S78026-14
couldnât move my legs. My legs donât move like that.â
When asked if she tried to push him off, she said,
â[n]o. . . because heâs too big. And I was scared.â10
When asked how the penetration felt, the victim
responded, âIt felt like someone was mutilating me
with a sharp object.â At some point, [Gonzalez]
suddenly stopped, and the encounter ended. There
was blood on the mattress and blood on the victimâs
underwear after she put them back on. The victim
testified that after she got dressed, [Gonzalez] said
to her, âIâm sorry. I have a weakness.â11
During cross-examination, defense counsel inquired
into the victimâs mobility. The victim attended
Lancaster Bible College and when asked if she could
walk around the campus independently, she
responded, âwith crutches, yes.â The victim later
testified on redirect that she has âpeople to help me
carryâ books and things, and she needs assistance to
open doors. Defense counsel further inquired into
the victimâs relationship with [Gonzalez], asking her
about a Facebook post she had made on March 7,
2011 which read, âI went out with an awesome guy
tonight. I have known him since August. Weâve
chatted off and on for months. And he officially
asked me to be his girlfriend this evening. We are
going out again tomorrow. And Iâm in like with
David Gonzalez.â Furthermore, when asked if she
had any bruises from the incident the victim
responded: âNo, I donât think I did.â The victim also
testified that [Gonzalez] did not hit, kick, grab, push,
gag, or punch her or use his fists or a weapon.
Defense counsel asked why the victim and
[Gonzalez] moved to the bedroom when they were
already making out in the living room. The victim
responded, âthere was no purpose. I didnât think I
was in any danger with David. I saw him - I thought
____________________________________________
10
N.T., 9/3/13, pp. 82-84, 125.
11
N.T., 9/3/13, pp. 84-85, 88, 94, 133.
-6-
J-S78026-14
he was an honest person.â Defense counsel asked,
âSo for the record, it never crossed your mind that at
that point, you were moving to the bedroom for sex.
It never crossed your mind?â The victim responded,
âNo, maâam.â12
Alternatively, [Gonzalez] testified that the encounter
was consensual. He said that when he and the victim
went out on March 7, 2011 and he confessed he was
not a virgin, she told him she was not a virgin either,
and was not proud of that fact. On the day of the
incident, March 8, 2011, [Gonzalez] agreed that
while they were in the living room, [the victim]
started kissing him and he kissed her back. He also
agreed that they both started touching each other
intimately over their clothes, and then he âasked [the
victim] if she wanted to go to the bedroom. She
agreed. [The victim] got up, and she went first. I
went behind [the victim]. I followed after her. Then
we went into the bedroom together.â [Gonzalez]
testified about the events in the bedroom in the form
of a narrative:
We were kissing each other. . . . We stood --
we were kissing. [The victim] was still fondling
my penis. . . [The victim] then sat down on the
bed. [The victim] then asked me to take my
pants off. She asked me â she leaned back.
And she asked me to help her with her jeans.
She also [asked] with her motions, as well as
asking me verbally, to help her with her pants.
I did that and her panties. [The victim] laid
her canes on the other side of the bed flat on
the bed. And so I asked [the victim] if I canâ
well, l was going to lay next to [the victim].
[The victim] was on one side of the bed [and]
the canes were on the other side of the bed. I
asked [the victim] if I can move the canes
towards the right or the left. [The victim] said
fine. I laid next to [the victim]. And we were
____________________________________________
12
N.T., 9/3/13, pp. 100, 108, 158-163.
-7-
J-S78026-14
kissing. [The victim], we were laying next to
each other. We were kissing. [The victim] was
still fondling me. [The victim] then asked me if
I could rub my penis against her vagina. And I
did that. While I was doing that, I was kind
ofâwent on the side. I was basically with my
hand trying to rub my penis against her
vagina. After that, I moved over kind of
almost on top of her. I started grinding. I
started rubbing my penis without my hands.
Before I wasâbefore I did that, I did touch
[the victim] with my finger while I was
rubbing. [The victim] got - she got aroused.
She started saying my name. And I asked her
if she was okay. She said she was fine. After I
was on top of [the victim], [the victim] asked
me to spread her legs a little bit. Thatâs what I
did. And I was rubbing my penis without my
hands on her vagina. After that, I then asked
[the victim] if I could penetrate her. . .the
word I used, can I come inside you. [The
victim] said yes. I slightly penetrated [the
victim] with my penis. [The victim], again she
got very aroused, she started saying my name
again loudly. And while I paused and I said,
are you okay? While I said that, at the same
time, [the victim] said, lâm tight. Iâm tight,
donât stop, donât stop, come into me slowly. I
took her direction. I started coming into her
slowly with my penis. I penetrated her at least
three or four times, no more than four and
deeper than the first time. I knew what we
were doing withâ[the victim] and I were doing
was wrong. I smelled blood. Well, I smelled an
odd smell, I noticed the blood. When I noticed
the blood, I took it as it was an opportunity to
stop. And thatâs what I did. I stopped. I
thought it was the Lord giving me an
opportunity to stop because I didnât want to
continue what we were doing. In my heart,
thatâs not what I wanted to do even though I
was doing it, what we were doing. So I
stopped. I told [the victim] I think we need to
stop. [The victim] got a little shy. She got a
-8-
J-S78026-14
little embarrassed. She sat up, she noticed the
blood. And she got quiet.13
[Gonzalez] denied ever putting the victimâs legs on
his shoulders, or having his hands around her
ankles. He also denied ever apologizing to the victim
or admitting that he had a âweakness.â He testified
further that she never said âno, donât.â He said:
The whole time we were in the bedroom, [the
victim] was giving me direction to what to do. I
was following herâafter her direction. She
told me to take her pants off. She told me
to...rub my penis against her vagina. [The
victim] was the one that told me not to stop.
She gave me direction, instruction, you know,
to come into her slowly. Thatâs exactly what I
did.14
Trial Court Pa.R.A.P. 1925(a) Opinion (âOpinionâ), pp. 6-12.
The trial court provides an accurate account of K.M.âs and Gonzalezâs
testimony, but there is additional relevant evidence that the trial court does
not mention. After concluding sexual intercourse, K.M. and Gonzalez
returned to the living room to continue watching the movie. Gonzalez
indicated that his cousin was coming over to visit, and K.M. asked him to
take her home. Gonzalez assisted her, and she stood outside while Gonzalez
went to get his car. Although the police station was across the street, K.M.
did not make any telephone calls or attempt to go to the police station to
report the incident. Gonzalez helped K.M. into the car, and they stopped at
____________________________________________
13
N.T., 9/4/13, pp. 151, 157-160, 187.
14
N.T., 9/4/13, pp. 180-183.
-9-
J-S78026-14
a gas station en route to her house. She did not use her cell phone at the
gas station or report the incident to anyone. Upon arriving at her home,
Gonzalez helped her get out of the car.15
After K.M. entered her house, her sister asked her whether something
was wrong. K.M. did not state that Gonzalez had assaulted her. K.M.âs
mother questioned her. K.M. initially denied that anything was wrong but
then stated: âI think he raped me.â16
K.M. was taken to the hospital and eventually was interviewed by the
police. A hospital nurse testified that she interviewed and examined K.M. at
the hospital. The nurseâs notes state: âHe laid me back on the bed. And he
went in. I said no.â K.M. also stated that after the sexual encounter, she
returned to the couch and continued to watch the movie. She also indicated
that Gonzalez did not use any physical or verbal coercion during the
encounter, and K.M. did not sustain any bruising or injury. There was blood
on K.M.âs underwear. The nurse began but could not complete a full internal
examination, because K.M. felt uncomfortable. K.M. was discharged from the
hospital without any determination of the cause of her bleeding.17
____________________________________________
15
N.T., 9/3/13, pp. 89-91, 137, 145.
16
N.T., 9/3/13, pp. 92-93, 147-49.
17
N.T., 9/3/13, pp. 18, 21-22, 31, 40, 223, 230, 236, 238-239, 251.
- 10 -
J-S78026-14
Each party presented expert testimony on the cause of K.M.âs
bleeding. The Commonwealthâs expert testified that the blood on her
underwear was not menstrual in nature. Gonzalezâs expert testified that the
blood was menstrual in nature.18
Gonzalezâ first argument on appeal is a challenge to the sufficiency of
the evidence. We first consider the evidence of rape. The Crimes Code
defines rape in pertinent part as follows: âA person commits a felony of the
first degree when the person engages in sexual intercourse with a
complainant. . .by forcible compulsion.â 18 Pa.C.S. § 3121(a)(1). The
Crimes Code defines âforcible compulsionâ in relevant part as âcompulsion by
use of physical, intellectual, moral, emotional or psychological force, either
express or implied.â 18 Pa.C.S. § 3101. This Court has observed âforcible
compulsionâ as the exercise of sheer physical force or violence and has also
come to mean an act of using superior force, physical, moral, psychological
or intellectual to compel a person to do a thing against that personâs volition
and/or will. Commonwealth v. Ables, 590 A.2d 334, 337 (Pa.Super.1991).
A determination of forcible compulsion rests on the totality of the
circumstances, including but not limited to this list of factors:
the respective ages of the victim and the accused,
the respective mental and physical conditions of the
victim and the accused, the atmosphere and physical
____________________________________________
18
N.T., 9/4/2013 pp. 4-48 (Commonwealthâs expert); N.T., 9/5/2013 pp. 4-
63 (Gonzalezâs expert).
- 11 -
J-S78026-14
setting in which the incident was alleged to have
taken place, the extent to which the accused may
have been in a position of authority, domination or
custodial control over the victim, and whether the
victim was under duress.
Commonwealth v. Rhodes, 510 A.2d 1217, 1226 (Pa.1986) (emphasis
added). It is not mandatory to show that the victim resisted the assault in
order to prove forcible compulsion. Id. The victimâs uncorroborated
testimony is sufficient to support a rape conviction. Commonwealth v.
Wall, 953 A.2d 581, 584 (Pa.Super.2009).
The distinction between forcible compulsion and lack of consent is
important to remember. With regard to consent, the Crimes Code states:
âThe consent of the victim to conduct charged to constitute an offense or to
the result thereof is a defense if such consent negatives an element of the
offense or precludes the infliction of the harm or evil sought to be prevented
by the law defining the offense.â 18 Pa.C.S. § 311(a). âForcible
compulsionâ means âsomething moreâ than mere lack of consent.
Commonwealth v. Smolko, 666 A.2d 672, 676 (Pa.Super.1995). âWhere
there is a lack of consent, but no showing of either physical force, a threat of
physical force, or psychological coercion, the âforcible compulsionâ
requirement. . .is not met.â Id.
The trial court comprehensively analyzed the sufficiency of the
evidence of rape in its opinion denying Gonzalezâs motion for post-trial relief.
The court aptly described this case as âuniqueâ, because âit is not a case of
- 12 -
J-S78026-14
moral, psychological, or intellectual forcible compulsion that has often been
found in circumstances involving a young, vulnerable victim and a
perpetrator who is in a position of authority and trust.â Opinion Denying
Post-Trial Relief (âPost-Trial Opinionâ), 11/5/13, p. 13. The court was
careful to note that this case involved âtwo competent adults who formed a
dating relationshipâ who had engaged in âsome consensual intimacy (i.e.
kissing, hugging)â, and the incident âoccurred during a planned date.â Id.,
p. 14. Moreover, âthe victim initiated kissing and touching with [Gonzalez]
on the couch in his living room, willingly walked herself to the bedroom upon
[Gonzalezâs] request, and did not protest when he removed her pants and
underwear.â Id. Thus, the court found nothing about the respective ages or
mental conditions of Gonzalez and K.M. that demonstrates forcible
compulsion. Id. Gonzalez did not occupy a position of âauthority or
custodial controlâ over K.M., and she was not under duress. Id.
Despite these factors, the trial court reasoned that other details
showed Gonzalezâs âdominationâ over K.M. The court observed that K.M.âs
cerebral palsy âwas a physical condition that caused her to have stiff legs
with limited movement and walk with crutches.â Id., p. 16. During the
encounter, âshe was lying on her back, away from her crutches and her cell
phone,â all of which Gonzalez had placed beyond her reach, and she âwas
away from any objects she could use to help lift herself up. . .â Id.
Gonzalez âwas initially lying on top of her and then forced her legs apart and
- 13 -
J-S78026-14
cuffed her ankles on his shoulders. He also told [K.M.] to be quiet when she
repeatedly said âowâ during the penetration.â Id. Although K.M. did not call
out for help or try to push Gonzalez away with her arms, âresistance is not
necessary to prove forcible compulsionâ â and in any event, resistance would
have accomplished nothing, since Gonzalez was too big to push off her body,
and she was unable to kick due to her cerebral palsy. Id., pp. 16-17.
The trial court also concluded that there was evidence of âphysical
force.â By itself, K.M.âs statement, âno donâtâ, is not sufficient evidence of
force, because this statement only indicates lack of consent, and âforcible
compulsion is something more than lack of consent.â Id. at 17 (citing
Commonwealth v. Berkowitz, 641 A.2d 1161, 1165 (Pa.1994). Here,
however, there was âsomething more,â specifically, lack of consent and
physical force:
[Gonzalez] forc[ed] the victimâs legs apart, ben[t]
her knees, mov[ed] her ankles up to his shoulders
and cuff[ed] her ankles while he penetrated her.
The victim was unable to open her legs or bend her
knees by herself. [Gonzalez] repositioned her legs
when he penetrated her with his finger, and then
again placed her legs back on his shoulders when he
penetrated her with his penis a second time. Again,
the victim was unable to move her legs to resist or
prevent [Gonzalezâs] actions.
Id., p. 17. Although this force âwas not extreme, it was certainly unique to
the factual circumstances of the case and sufficient to establish forcible
compulsion by [Gonzalez] on this particular victimâ beyond a reasonable
doubt. Id., pp. 17-18.
- 14 -
J-S78026-14
We agree with the trial courtâs astute analysis by construing the
evidence in the light most favorable to the Commonwealth. K.M.âs
testimony establishes that she told Gonzalez that she did not want
premarital intercourse. Gonzalez pretended to agree with K.M., but one day
later, he maneuvered her into a position in which she was powerless to
resist his advances. He took her to his apartment, where she had never
been before. He placed her cell phone out of reach in a living room tray,
and when they adjourned to his bedroom and lay down on his bed, he placed
her crutches out of reach. Without her phone or crutches, she could not
escape from the bed or contact an outside agency for help. He then
disrobed her and lay on top of her. She uttered âno, donât,â but instead of
stopping, he forced her legs apart and cuffed them on his shoulders â
movements she was incapable of performing herself due to her cerebral
palsy. He then penetrated her with his penis and told her to be quiet when
she repeatedly called out âowâ. K.M.âs lack of consent (âno, donâtâ),
combined with Gonzalezâs use of domination and physical force, provide
sufficient evidence of forcible compulsion to justify his conviction for rape.
Gonzalezâs contention that K.M. initiated sexual intercourse and that he
followed her directions does not undermine the sufficiency of the evidence.
Commonwealth v. Andrulewicz, 911 A.2d 162, 166 (Pa.Super.2006)
(âthe court was free to accept [the victimâs] characterization of what
transpired with Appellant, particularly her representation that Appellant
- 15 -
J-S78026-14
ârapedâ herâ); Filer, 846 A.2d at 141 (victimâs testimony that defendant
digitally penetrated her was sufficient evidence for jury to find defendant
guilty of aggravated indecent assault despite defendantâs different version of
events).
The evidence is also sufficient to support Gonzalezâs conviction for
aggravated indecent assault. The Crimes Code defines this offense in
pertinent part as follows:
Except as provided in sections 3121 (relating to
rape), 3122.1 (relating to statutory sexual assault),
3123 (relating to involuntary deviate sexual
intercourse), and 3124.1 (relating to sexual assault),
a person who engages in penetration, however
slight, of the genitals or anus of a complainant with a
part of the personâs body for any purpose other than
good faith medical, hygienic or law enforcement
procedures commits aggravated indecent assault if:
(1) The person does so without the complainantâs
consent; [or]
(2) The person does so by forcible compulsion.
18 Pa.C.S. § 3125(a). Digital penetration is sufficient to support a
conviction for aggravated indecent assault, Commonwealth v. Filer, 846
A.2d 139, 141 (Pa.Super.2004), as is penetration with the defendantâs penis.
Commonwealth v. Castlehun, 889 A.2d 1228, 1233 (Pa.Super.2005)
(evidence was sufficient to support finding that defendant penetrated
victimâs vagina, as required to support aggravated indecent assault
conviction; victim testified that defendant both digitally penetrated her
vagina and inserted his penis into her vagina).
- 16 -
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Here, Gonzalez penetrated K.M. with his finger and then with his
penis. K.M. testified that she said âno, donâtâ and that Gonzalez ârapedâ her.
This evidence demonstrates that each penetration occurred without K.M.âs
consent. Andrulewicz, Filer, supra. And as explained on pages 11-14,
the evidence also is sufficient to demonstrate forcible compulsion. Thus, the
evidence is sufficient to prove aggravated indecent assault beyond a
reasonable doubt.
The same evidence is sufficient to sustain Gonzalezâs conviction for
sexual assault. The Crimes Code defines this offense in pertinent part as
follows: âA person commits a felony of the second degree when that person
engages in sexual intercourse or deviate sexual intercourse with a
complainant without the complainantâs consent.â 18 Pa.C.S. § 3124.1.
Resistance to the sexual assault is not a requisite for sustaining a conviction
for sexual assault. Andrulewicz, 906 A.2d at 165-66. The evidence
demonstrates that Gonzalez and K.M. engaged in sexual intercourse without
K.M.âs consent.
Gonzalezâs second argument on appeal is that the verdict is contrary to
the weight of the evidence. We disagree.
The law pertaining to weight of the evidence claims is well-settled.
The weight of the evidence is a matter exclusively for the finder of fact, who
is free to believe all, part, or none of the evidence and to determine the
credibility of the witnesses. Commonwealth v. Forbes, 867 A.2d 1268,
- 17 -
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1273â74 (Pa.Super.2005). A new trial is not warranted because of âa mere
conflict in the testimonyâ and must have a stronger foundation than a
reassessment of the credibility of witnesses. Commonwealth v. Bruce,
916 A.2d 657, 665 (Pa.Super.2007). Rather, the role of the trial judge is to
determine that notwithstanding all the facts, certain facts are so clearly of
greater weight that to ignore them or to give them equal weight with all the
facts is to deny justice. Id.
On appeal, âour purview is extremely limited and is confined to
whether the trial court abused its discretion in finding that the jury verdict
did not shock its conscience. Thus, appellate review of a weight claim
consists of a review of the trial court's exercise of discretion, not a review of
the underlying question of whether the verdict is against the weight of the
evidence.â Commonwealth v. Knox, 50 A.3d 732, 738 (Pa.Super.2012).
An appellate court may not reverse a verdict unless it is so contrary to the
evidence as to shock one's sense of justice. Forbes, 867 A.2d at 1273â74.
The trial court fully and satisfactorily explains why Gonzalezâs weight
of the evidence claim is unsuccessful:
The [c]ourt disagrees with [Gonzalez]âs statement
that totality of the evidence presented at trial
established that any sexual relations that [Gonzalez]
had with the victim were consensual in nature. True,
much of the evidence presented at trial did establish
that the victim and [Gonzalez] engaged in some
consensual kissing and touching prior to the sexual
intercourse, but the testimonies of the victim and
[Gonzalez] clearly conflict regarding whether the
sexual intercourse itself was consensual. The sexual
- 18 -
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intercourse is the subject of the criminal convictions
at issue, not anything that occurred prior.
Regardless. . .it is entirely irrelevant what the
totality of the evidence does or does not establish,
because the jury is free to believe all, part, or none
of the evidence presented at trial. The victimâs
testimony shows that the sexual intercourse that
occurred in [Gonzalez]âs bedroom on March 8, 2011
was not consensual. For example, after detailing the
events in [Gonzalez]âs bedroom, the victim went on
to testify that [Gonzalez] âraped her.â (N.T. 9/3/2013
p. 93, 97, 183). She agreed with the
Commonwealthâs statement that she never gave
[Gonzalez] permission to have sexual intercourse
with her, and said "no, donât" when [Gonzalez] lay
on top of her. Id. at 97. Due to the nature of the
verdict, the jury evidently found the victim credible,
and elected not to believe [Gonzalez]âs version of
events. See Commonwealth v. Hunzer, 868 A.2d
498, 507 (Pa.Super.2005). Conflicts between the
testimonies of the victim and [Gonzalez] are for the
jury to resolve, and review of the juryâs credibility
determinations is not for the trial court to undertake.
As referenced above, a new trial should not be
granted because of a mere conflict in the testimony
or because the judge on the same facts would have
arrived at a different conclusion. Widmer, 744 A.2d
at 751-52. The jury weighed the evidence presented,
evaluated the testimony of the witnesses, and made
a determination thereupon. It was entitled to believe
the victim and to find [Gonzalez] incredible.
The Court also disagrees with [Gonzalez]âs argument
that the testimony presented at trial did not
establish forcible compulsion, threat of forcible
compulsion or the absence of consent. We have
already found that the victimâs testimony at trial
established forcible compulsion and the absence of
consent. . .Although [Gonzalez]âs version of events
does not establish either, the jury found the victim
and her testimony credible and discredited that of
[Gonzalez]. The Court will not disturb the juryâs
credibility determinations here.
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After careful review of the record, the Court cannot
find the verdicts so contrary to the evidence as to
shock oneâs sense of justice and make an award of a
new trial imperative. Consequently, the Court does
not find [Gonzalez]âs testimony and version of events
so clearly of greater weight than the victimâs that
failure to give it credence amounts to a denial of
justice. [Gonzalez] is not entitled to a new trial as
the verdicts are not against the weight of the
evidence.
Opinion, pp. 17-19. For the reasons given by the trial court, we conclude
that it properly exercised its discretion in denying Gonzalezâs challenge to
the weight of the evidence.
In his third argument on appeal, Gonzalez contends that the trial court
erred in admitting into evidence an audiotape of K.M.âs statement to the
police on March 13, 2011, several days after the incident and over two years
before trial.19 The trial court held that the audiotape was admissible under
Pa.R.E. 613(c) as a prior consistent statement. Gonzalez contends that the
audiotape did not qualify as a prior consistent statement. Gonzalez argues
that the audiotape prejudiced him, because K.M.âs sobbing voice made the
jury sympathize with her and become inflamed against him.
As the appellant, Gonzalez has the duty to ensure that the record is
complete for purposes of appellate review. Commonwealth v. Griffin, 65
A.3d 932, 936 (Pa.Super.2013). The record in this case does not include the
____________________________________________
19
The court permitted the Commonwealth to play the tape during trial.
N.T., 9/3/2013, p. 96.
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audiotape or even a transcript of K.M.âs statement, thus thwarting our
review of Gonzalezâs argument. Commonwealth v. Preston, 904 A.2d 1, 6
(Pa.Super.2006) (en banc). Accordingly, we find this argument waived.
Commonwealth v. Powell, 956 A.2d 406, 422-23 (Pa.2008) (defendant
waived appellate review of his claim that trial court erred at trial for capital
murder in admitting a certain autopsy photograph; photograph was not
contained in the record, and the Supreme Court was accordingly unable to
assess defendantâs claim, which was based on his assertions that photograph
was gruesome and had a strong likelihood that it would inflame passions of
jury).
In his fourth argument on appeal, Gonzales asserts that the trial court
abused its discretion in granting the Commonwealthâs motion to preclude
evidence concerning K.M.âs mental health diagnoses. This argument has two
subparts â a claim that the trial court should have permitted evidence
concerning K.M.âs mental health diagnoses, and a claim that the trial court
erred in refusing to compel the Commonwealth to produce mental health
records pertaining to K.M from an alleged mental health facility, Brooklane
Health Services (âBHSâ). Neither subpart is persuasive.
The relevant procedural history is as follows. In mid-2012, the
Commonwealth produced K.M.âs medical records from Waynesboro Hospital
(July 1, 2006 through August 31, 2006 and February 1, 2009 through March
1, 2009), Cumberland Valley Womenâs Group (February 1, 2008 through
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March 1, 2009), Antrim Family Medicine (February 1, 2008 through March 1,
2009) and Hershey Medical Center (January 1, 2004 through January 30,
2013) (collectively âthe medical facilitiesâ). These records delineated K.M.âs
medical treatment both before and after the assault.
Gonzalez also demanded K.M.âs records from BHS,20 which he alleged
is a mental health facility21 that K.M. checked into âshortly afterâ the
assault.22 The trial court repeatedly denied Gonzalezâs requests for the BHS
records.23
On July 23, 2013, the Commonwealth moved to preclude evidence of
K.M.âs mental health diagnoses in the medical facilitiesâ records.24 In
____________________________________________
20
Defendantâs Motion Requesting Order Of Court To Release Criminal
Complainantâs School Records And Medical Records (Doc. # 15) (filed
December 29, 2011); Defendantâs Motion For Reconsideration Of Denial Of
Defendantâs Motion Requesting Order Of Court To Release Criminal
Complainantâs School Records And Medical Records (Doc. # 19) (filed
February 17, 2012); Defendantâs Memorandum In Support Of Defendantâs
Motion For Reconsideration, p. 5 (Doc. # 82) (filed August 26, 2013).
21
The Commonwealth did not dispute below, and does not dispute here, that
BHS is an actual, extant mental health facility. Therefore, we assume for
purposes of this appeal that BHS is an actual, extant mental health facility.
22
Defendantâs Memorandum In Support Of Defendantâs Motion For
Reconsideration, p. 5 (Doc. # 82) (filed August 26, 2013).
23
Order Dated January 31, 2012 (Doc. # 18); Order Dated March 16, 2012
Denying Defendantâs Motion For Reconsideration (Doc. # 23); Order Dated
August 29, 2013 Denying Defendantâs August 26, 2013 Motion For
Reconsideration (Doc. # 83).
24
Commonwealthâs Motion In Limine (Doc. # 71) (filed July 23, 2013).
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response, Gonzalez obtained an expert report25 which opined: âThe
diagnoses [in the medical records] of depression (noted to be worsening)
and anxiety may affect perception and recollection. Diagnoses of depression
and anxiety and the medications used to treat these diagnoses may affect
perception and recollection.â26 [Emphasis added] On August 13, 2013, the
trial court granted the Commonwealthâs motion to exclude evidence of K.M.âs
mental health diagnoses in the medical facilitiesâ records.27
We first address the trial courtâs order precluding evidence of K.M.âs
mental health diagnoses. In general, the admission of evidence
is a matter vested within the sound discretion of the
trial court, and such a decision shall be reversed only
upon a showing that the trial court abused its
discretion. In determining whether evidence should
be admitted, the trial court must weigh the relevant
and probative value of the evidence against the
prejudicial impact of the evidence. Evidence is
relevant if it logically tends to establish a material
fact in the case or tends to support a reasonable
inference regarding a material fact. Although a court
may find that evidence is relevant, the court may
nevertheless conclude that such evidence is
inadmissible on account of its prejudicial impact.
____________________________________________
25
Defendantâs Response To Commonwealthâs Motion In Limine, Exhibit âAâ
(Doc. # 72) (filed July 29, 2013) (expert report of Kathleen Brown, Ph.D.,
RN, associate practice professor at the University of Pennsylvaniaâs School of
Nursing).
26
Defendantâs Response To Commonwealthâs Motion In Limine, Exhibit âAâ,
p. 4.
27
Opinion And Order Dated August 12, 2013 (Doc. # 77).
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Commonwealth v. Weakley, 972 A.2d 1182, 1188 (Pa.Super.2009).
Furthermore, when determining the admissibility of evidence of a witnessâ
mental instability,
[t]he crucial determination that a trial judge must
make. . .is whether [this evidence] is related to the
subject of the litigation or whether it affects the
testimonial ability of the witness so as to impeach
him. The evidence can be said to affect the credibility
of a witness when it shows that his mental
disorganization in some way impaired his capacity to
observe the event at the time of its occurrence, to
communicate his observations accurately and
truthfully at trial, or to maintain a clear recollection
in the meantime.
Commonwealth v. Mason, 518 A.2d 282, 285 (Pa.Super.1986).
In this case, Gonzalez contends that the report of his expert, Dr.
Brown, created enough questions about K.M.âs ability to perceive and recall
events that the trial court should have denied the Commonwealthâs motion
to preclude evidence of K.M.âs mental instability. The law on the
admissibility of expert testimony is well settled. Pa.R.E. 703 provides:
The facts or data in the particular case upon which
an expert bases an opinion or inference may be
those perceived by or made known to the expert at
or before the hearing. If of a type reasonably relied
upon by experts in the particular field in forming
opinions or inferences upon the subject, the facts or
data need not be admissible in evidence.
Under this rule,
expert testimony is incompetent if it lacks an
adequate basis in fact. While an expertâs opinion
need not be based on absolute certainty, an opinion
based on mere possibilities is not competent
- 24 -
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evidence. This means that expert testimony cannot
be based solely upon conjecture or surmise. Rather,
an expertâs assumptions must be based upon such
facts as the jury would be warranted in finding from
the evidence.
Gillingham v. Consol Energy, Inc., 51 A.2d 841, 849 (Pa.Super.2012).
While an expert need not use âmagic words,â the foundation of her opinion
must still be sturdy. As our Supreme Court has emphasized, the expert
must base the substance of her opinion on a reasonable degree of certainty
instead of mere speculation. Commonwealth v. Spotz, 756 A.2d 1139,
1150 (Pa.2000) (forensic pathologistâs testimony in first-degree murder trial
as to victimâs manner of death was properly based on reasonable degree of
medical certainty, though pathologist did not use those âmagic words,â
where pathologist explained that victim had been shot in neck and chest,
that amount of hemorrhage surrounding gunshot wounds indicated she was
shot while she was alive, and that minimal hemorrhage surrounding other
wounds indicated she was run over after she died).
In our view, Dr. Brown grounded her report on âon mere possibilitiesâ
instead of a reasonable degree of certainty. Gillingham, supra, 51 A.3d at
849. She stated only that K.M.âs diagnoses of depression and anxiety in the
medical records âmay affect [her] perception and recollection.â She failed to
opine that K.M.âs alleged depression or anxiety impaired her perception or
recall of the critical events at the heart of this case. Because her report was
nothing more than âconjecture or surmise,â Id., the trial court acted within
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its discretion by excluding evidence of K.M.âs mental health diagnoses in the
records provided by the Commonwealth.28
We turn to Gonzalezâs contention that the trial court erred by denying
his requests to compel the Commonwealth to produce K.M.âs records from
BHS. Gonzalez apparently believes that the BHS records might bolster his
claim that K.M. â[lacked] capacity to observe the event at the time of its
occurrence, to communicate [her] observations accurately and truthfully at
trial, or to maintain a clear recollection in the meantime.â Mason, supra,
518 A.2d at 285. We review the trial courtâs discovery rulings for abuse of
discretion. Commonwealth v. Robinson, 834 A.2d 1160, 1166
(Pa.Super.2003).
____________________________________________
28
It bears mention that despite the trial courtâs ruling, it permitted counsel
to ask questions about K.M.âs medication use, yet none of the evidence
showed that the medications affected her ability to testify. For example,
defense counsel asked K.M. if she had âtaken any medications today that
might affect [her] ability to continue?â N.T. 9/3/2013, p. 147. K.M.
responded in the negative, and defense counsel asked: âAre there any
medications that you needed to take that you didnât have a chance to take?â
Id. K.M. again responded in the negative. Id. The Commonwealth asked
K.M.âs mother if she was familiar with several different medications that K.M.
took due to her cerebral palsy. Id. at 206. K.M.âs mother responded that
she was, and the Commonwealth asked if she had ânoticed any problems
with disorientation, memory loss, or anything like that as a result of that
medication.â Id. K.M.âs mother responded that there were problems which
lasted about a week when the victim first started taking the medications
when she was 25, but at the time of the assault, March 2011, she did not
recall K.M. having any problems with awareness or orientation in time or
place. Id.
- 26 -
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For two reasons, we conclude that the trial court acted within its
discretion by denying Gonzalez access to the BHS records. First, despite
Gonzalezâs claims that K.M. sought in-patient treatment at BHS âshortly
afterâ Gonzalezâs assault, we find nothing in the record which establishes
when, if ever, K.M. received treatment at BHS. Absent such indicia, we have
no way to gauge the relevance of the BHS records. Moreover, Dr. Brown,
Gonzalezâs expert, reviewed copious medical records from the
aforementioned medical facilities relating to K.M.âs treatment from mid-2006
through early 2013, both before and after Gonzalezâs assault. The most that
Dr. Brown can say after reading 6½ years of medical records is her wholly
inadequate remark that K.M.âs depression and anxiety âmay affect
perception and recall.â Under these circumstances, it seems rather
speculative for Gonzalez to suggest that the BHS records would have
provided anything more helpful to his defense.
Second, assuming that K.M. received treatment at BHS, the BHS
records are privileged and not subject to release without K.M.âs consent.29
The Mental Health Procedures Act (âMHPAâ) provides in relevant part:
____________________________________________
29
Although the trial court did not discuss the subject of privilege, we still
have the authority to affirm on this ground. Bradley v. General Acc. Ins.
Co., 778 A.2d 707, 710 n. 2 (Pa.Super.2001) (âwe may affirm the decision
of [the trial] court if the result is correct on any groundâ).
- 27 -
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(a) All documents concerning persons in treatment
shall be kept confidential and, without the personâs
written consent, may not be released or their
contents disclosed to anyone except:
(1) those engaged in providing treatment for the
person;
(2) the county administrator, pursuant to section
110;
(3) a court in the course of legal proceedings
authorized by this act; and
(4) pursuant to Federal rules, statutes and
regulations governing disclosure of patient
information where treatment is undertaken in a
Federal agency.
In no event, however, shall privileged
communications, whether written or oral, be
disclosed to anyone without such written consent.
50 P.S. § 7111 (emphasis added). The MHPA must be strictly construed.
Commonwealth v. Moyer, 595 A.2d 1177, 1179 (Pa.Super.1991).
Construed strictly, the MHPA limits judicial use of mental health records to
mental health commitment proceedings unless the patient consents to their
use in other judicial proceedings. 50 P.S. § 7111. Moyer speaks
definitively on this point:
The unambiguous language of section 7111(3) leads
us to conclude that a patientâs inpatient mental
health treatment records may be used by a court
only when the legal proceedings being conducted are
within the framework of the MHPA, that is,
involuntary and voluntary mental health commitment
proceedings. See 50 P.S. § 7103 (MHPA establishes
the rights and procedures for all involuntary
treatment of mentally ill persons, whether inpatient
or outpatient, and for all voluntary inpatient
treatment of mentally ill persons). See also Kakas
- 28 -
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v. Commonwealth of Pennsylvania, 65
Pa.Cmwlth. 550, 442 A.2d 1243 (1982). We can find
no language within the [MHPA] itself which includes
criminal proceedings within the framework of the act,
nor can we find any caselaw in the Commonwealth
which supports such a proposition.
Id. (emphasis in original). The records at issue in Moyer were mental
health records of a criminal defendant, while the mental health records in
this case pertain to a criminal complainant (K.M.). Nevertheless, Moyerâs
construction of section 7111(3) applies with equal force to this case.
Because this case is not a voluntary or involuntary mental health
commitment proceeding, K.M.âs mental health records are not discoverable
absent K.M.âs consent to their release. Nothing in the record indicates that
K.M. consented to the release of BHS records. Thus, they have no place in
this criminal case.
We do not agree with Gonzalezâs argument that Commonwealth v.
Dudley, 510 A.2d 1235 (Pa.Super.1986), requires disclosure of K.M.âs BHS
records. In Dudley, a complainant received psychiatric treatment at two
hospitals within several months after an alleged rape. The complainant had
hallucinations and suffered a psychotic episode approximately two months
after the incident and approximately six months before trial. According to a
psychiatrist who treated her, the complainant had a âhysterical personality,
which means when she gets overwhelmed or needs more attention, and [sic]
she does have childish attention-seeking behavior. . .then she has fainting
- 29 -
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spells.â Id., 510 A.2d at 1238. The trial court ruled that defense counsel
could not introduce the testimony of a psychiatrist who treated the
complainant at one of the hospitals. This Court determined that the trial
court abused its discretion by excluding psychiatric testimony regarding the
complainantâs post-incident hospitalization, because â[the complainantâs]
mental disorganization in some way impaired [her] capacity to observe the
event at the time of its occurrence, to communicate [her] observations
accurately and truthfully at trial, or to maintain a clear recollection in the
meantime.â Id.
Dudley is distinguishable from the present case. Unlike Dudley, the
record in this case does not reveal whether the facility in question, BHS, is a
mental health facility, or when K.M. received treatment at BHS. In addition,
the complainantâs diagnosis in Dudley clearly implicated her abilities to
perceive and recall critical events. Here, despite in-depth review of years of
medical records, Gonzalezâs expert did not opine to a reasonable degree of
certainty that K.M.âs depression and anxiety affected her ability to perceive
and recall the events of March 8, 2011. Simply put, nothing in the present
record demonstrates that the alleged BHS records have any relevance.
Moreover, Dudley did not analyze whether the MHPA barred disclosure of
the complainantâs records.
In his fifth issue on appeal, Gonzalez argues that he is entitled to a
new trial because the trial court permitted the Commonwealth to read K.M.âs
- 30 -
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entire preliminary hearing testimony into the record during the
Commonwealthâs redirect examination of K.M. According to Gonzalez, the
trial court improperly permitted the Commonwealth to present inadmissible
prior consistent testimony. As discussed above, we review the trial courtâs
decision to admit or deny evidence for abuse of discretion. We detect no
abuse of discretion in the courtâs decision to permit the Commonwealth to
read K.M.âs preliminary hearing testimony into the trial record.
During K.M.âs cross-examination, defense counsel impeached her with
several excerpts from her preliminary hearing testimony. Defense counsel
used a portion of K.M.âs preliminary hearing testimony to discuss whether
she was confused about having any physical contact with the Defendant
prior to March 8, 2011.30 Counsel also attempted to show inconsistencies
regarding how K.M. said the alleged finger penetration occurred.31 In
addition, counsel tried to call K.M.âs attention to inconsistencies in her
testimony about the amount of questions her mother had asked her the
night of the incident.32 On redirect, the Commonwealth said to K.M.:
â[W]hat I'd like to do now is go over your testimony basically, in full,
____________________________________________
30
N.T., 9/3/2013, pp. 109-110.
31
N.T., 9/3/2013, pp. 129-130.
32
N.T., 9/3/2013, pp. 148-149.
- 31 -
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between page 5 and page 17 so that the jury gets a fair and accurate
depiction of what the entire testimony was instead of little bits and pieces.â 33
Defense counsel objected and asked for an offer of proof and an explanation
as to relevancy.34 The Commonwealth argued the rule of completeness and
stated that defense counsel had âtaken bits and pieces of testimony and
cross-examined the witness about it. The jury needs to hear what the entire
testimony was so they can determine what was said.â35 The trial court
allowed the Commonwealth to read K.M.âs entire preliminary hearing
testimony at trial.36 On recross, the court permitted defense counsel to read
relevant portions of the victimâs preliminary hearing testimony.37
The scope of redirect examination is largely within the discretion of the
trial court. Commonwealth v. Dreibelbis, 426 A.2d 1111, 1117
(Pa.1981). When a party raises an issue on cross-examination, it is no
abuse of discretion for the court to permit redirect on that issue to dispel
any unfair inferences. Id., 426 A.2d at 1117. The trial court reasoned that
____________________________________________
33
N.T., 9/3/2013, p. 169.
34
N.T., 9/3/2013, p. 170.
35
N.T., 9/3/2013, p. 170.
36
N.T., 9/3/2013, pp. 170-182.
37
N.T., 9/3/2013, pp. 184-202.
- 32 -
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its decision to permit the Commonwealth to read K.M.âs preliminary hearing
testimony into the record on redirect does not warrant a new trial:
We permitted the Commonwealth to redirect the
victim with her preliminary hearing testimony to
dispel any unfair inferences that reading small
portions of the testimony out of context raised. We
did not abuse our discretion in allowing the
Commonwealth to do so. Unfortunately, while
reading the Preliminary Hearing testimony onto the
record, the Commonwealth went far beyond the
issues that were raised by defense counsel on cross-
examination. Consequently, the Court permitted
defense counsel to read other relevant portions of
the victimâs preliminary hearing testimony on recross
to give both parties the same opportunity.
Admittedly, the Commonwealthâs redirect went
beyond what the Court had intended, yet defense
counsel was given an equal opportunity to do the
same, and we did not abuse our discretion in initially
allowing the Commonwealth the opportunity to dispel
any unfair inferences.
Opinion, pp. 48-49. We agree with the trial courtâs reasoning that it acted
within its discretion in its initial decision to permit the Commonwealth to
read K.M.âs preliminary hearing testimony into the trial record.
Even if the trial court erred in permitting the Commonwealth to read
too much of K.M.âs preliminary hearing testimony into the record, any error
was harmless. âThe harmless error doctrine, as adopted in Pennsylvania,
reflects the reality that the accused is entitled to a fair trial, not a perfect
trial.â Commonwealth v. Hairston, 84 A.3d 657, 671 (Pa.2014).
Harmless error exists if the record demonstrates, inter alia, that the error
did not prejudice the defendant or the prejudice was de minimis. Id.
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Gonzalezâs brief does not identify specific examples of prejudice that he
suffered from the reading of K.M.âs preliminary hearing testimony. He
simply proclaims, without specific citations, that the trial court âallowed the
Commonwealth to present inadmissible prior consistent testimony.â This
bald assertion does not establish that Gonzalez suffered prejudice.
In his final argument on appeal, Gonzalez insists that his sentence is
unreasonable and excessive. He further asserts that while the sentences
imposed did not exceed the statutory maximum and were within the
standard range of the sentencing guidelines, they are still excessive.
This is a challenge to the discretionary aspects of Gonzalezâs sentence.
Our standard of review is as follows:
Sentencing is a matter vested in the sound discretion
of the sentencing judge, and a sentence will not be
disturbed on appeal absent a manifest abuse of
discretion. In this context, an abuse of discretion is
not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the
record, that the sentencing court ignored or
misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Hoch, 936 A.2d 515, 517â18 (Pa.Super.2007).
The right to appellate review of the discretionary aspects of a sentence
is not absolute and must be considered a petition for permission to appeal.
Hoch, 936 A.2d at 518. An appellant must satisfy a four-part test to invoke
this Courtâs jurisdiction when challenging the discretionary aspects of a
sentence. We must consider:
- 34 -
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(1) whether appellant has filed a timely notice of
appeal; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider
and modify sentence; (3) whether appellantâs brief
has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from
is not appropriate under the Sentencing Code.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super.2010).
Here, Gonzalez timely filed his notice of appeal within thirty days after
the trial court denied his post-sentence motions. Pa.R.Crim.P. 720(A)(2).
He preserved the challenge to his sentence in his post-sentence motions and
included a Pa.R.A.P. 2119(f) statement in his brief. Further, he raises a
substantial question, i.e., a plausible argument that the sentencing court
either acted inconsistently with a specific provision of the code, or acted
âcontrary to the fundamental norms which underlie the sentencing process.â
Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005). The
substantial question in Gonzalezâs brief is an âexcessive sentence claim[] in
conjunction with an assertion that the court did not consider mitigating
factors.â Commonwealth v. Dodge, 77 A.3d 1263, 1272 (Pa.Super.2013)
(en banc).38
____________________________________________
38
In a thorough analysis, Dodge demonstrates that this Court has reached
inconsistent decisions as to whether the claim that the trial court failed to
various mitigating factors when fashioning the defendantâs sentence
constitutes a âsubstantial questionâ. Id., 77 A.3d at 1272 n. 8. In the same
discussion, Dodge held that a substantial question exists when the
defendant asserts both a claim of excessiveness and the trial courtâs failure
to take mitigating circumstances into account. Id. at 1272-73.
- 35 -
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We determine, however, that Gonzalezâs excessiveness claim is devoid
of merit. We find persuasive the trial courtâs thorough analysis of this
question:
[Gonzalez] argues that the Court failed to properly
weigh[] certain mitigating circumstances, including
his law abiding past, his education, his employment
history, his community and familial support, and the
fact that this was his first conviction. The Court
disagrees as this argument is contradicted by the
record. First, a pre-sentence investigation report
was prepared by the Probation Department, and our
Supreme Court has stated that, â[w]here pre-
sentence reports exist, we shall continue to presume
that the sentencing judge was aware of relevant
information regarding [Gonzalez]âs character and
weighed those considerations along with mitigating
statutory factors.â Commonwealth v. Devers, 546
A.2d 12, 18 (Pa. 1988). Not only did the Court
thoroughly review [Gonzalez]âs pre-sentence
investigation report, but also considered [Gonzalez]âs
twenty-four letters of support, heard and considered
the individuals who came forth to support [Gonzalez]
at sentencing, and heard what his attorney stated on
his behalf. See N.T. 12/18/2013 p. 41.
Acknowledging this information, the Court stated,
â[t]he witnesses that have testified in your support
and the letters provided for those who are absent
today all attest to your good moral character, your
commitment to the community in general, and to
your church.â Id. The Court stated further:
Notwithstanding the uncontested good deeds
that are attested to in these documents
relative to your community, the issue alone is
not whether you are viewed as an upstanding
contributing member of society. The focus
today must be on what you did do to this
victim on March 8th of 2011 and how should
you be held accountable for your behavior on
that day.
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J-S78026-14
Id. at 41-42. Despite [Gonzalez]âs contentions
otherwise, the Court did in fact consider and weigh
mitigating factors, yet found them of lesser value
when considering the gravity of [Gonzalez]âs crimes
against the victim. Additionally, at the time of
sentencing, [Gonzalez] still refused to âacknowledge
wrongdoing or the pain of the victim.â Id. at 42.
Such lack of remorse and accountability weighed
heavily in the Courtâs sentencing decisions and
weighed against the mitigating factors [Gonzalez]
claims the Court failed to consider. The Court
reasoned that [Gonzalez]âs âchoice to not express
remorse for the victimâs consequences of that day
limits the value of the character witnesses letters
and testimony provided today such that I can
consider them in shaping the sentence. But they
cannot be viewed as an excuse for your behavior.â
Id.
Finally, [Gonzalez] asserts that the Court unduly
emphasized the nature of the crimes and their
impact on the victim, and the physical limitations of
the victim in sentencing [Gonzalez]. The Court
disagrees because â[e]qual attentionâ was given to
the victim and [Gonzalez]. Id. at 43. Also, the Court
did not consider or discuss the victimâs physical
limitations at sentencing. Furthermore, courts are
required to consider the nature of the offenses and
their impact on the victim. A court must âfollow the
general principle that the sentence imposed should
call for confinement that is consistent with the
protection of the public, the gravity of the offense as
it relates to the impact on the life of the victim and
on the community, and the rehabilitative needs of
[Gonzalez].â [Commonwealth v.] Mouzon, 812
A.2d [617,] 620 [(Pa.2002)].
Again, in imposing concurrent sentences of four to
fifteen years for the rape conviction and two to ten
years for the aggravated indecent assault conviction,
the Court imposed sentences at the lowest end of
the standard ranges. See N.T. 12/18/2013 p. 44.
He will be serving his two sentences at the same
time for an aggregate sentence of four to fifteen
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J-S78026-14
years. At sentencing, the Commonwealth requested
he be sentenced to eight to seventeen years, at the
top of the standard range. Id. at 2, 44. Additionally,
the Court properly took âinto consideration
[Gonzalez]âs history and characteristics,
but...alsoâŚthe events of the day that led to
[Gonzalez]âs conviction for rape and aggravated
indecent assault.â Id.
Opinion, pp. 53-55.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/21/2015
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