Case Information
*1 J-S44007-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
HECTOR G. GONZALES,
Appellant No. 3690 EDA 2015 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 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
HECTOR G. GONZALES,
Appellant No. 3691 EDA 2015 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.: FILED NOVEMBER 21, 2017
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 *2 J-S44007-17
by forcible compulsion and unlawful restraint. [1] 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.
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 3 rd & Cumberland Streets in Philadelphia on July 1, 2013, around 11 p.m. [2] 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 ____________________________________________
[1] On December 28, 2015, this Court issued a per curiam order that sua sponte consolidated Appellant’s appeals in each of his two cases.
[2] To protect the privacy of the victims in this case, we have changed their names to initials.
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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 - 3 -
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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 3 rd 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 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] - 4 -
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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).
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…[?]
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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). 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.
Commonwealth v. Griffin , 65 A.3d 932, 935 (Pa. Super. 2013) (quoting Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010)).
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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)
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(“[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. [3]
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.
____________________________________________
[3] 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.
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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. [4] 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 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 , ____________________________________________
[4] 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.
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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.
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SVP Order reversed. Judgment of sentence affirmed in all other respects. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2017
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Circulated 11/02/2017 02:14 PM ALE.
IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY OF FIRST JUDICIAL DISTRICT PENNSYLVANIA Appeals Unit Cal Nov 6
CRIMINAL TRIAL DIVISION
First Judicial District of P COMMONWEALTH OF PENNSYLVANIA ) PHILADELPHIA COUNTY
COURT OF COMMON PLEAS )) VS.
) NO. CP-51-CR-0013380-2013 ) NO. CP-51-CR-0013381-2013 HECTOR GONZALES ) ) CP-51-CR-0013360-2013 Comm v Gonzales, Hector G. ) 01:rron
1111111,11,161,111,16111111,111 OPINION
Appellant, Hector Gonzales, as the above -named Defendant, seeks review of the Order and Judgment Sentence, imposed on July 2015, by the Honorable Anne Marie B. Coyle, Judge the First Judicial District Court Common Pleas, The Appellant asserts within the combined Statements Matters Complained on Appeal Pursuant Pa. R. P. 1925(b) filed in both above - captioned matters that:
1) in its imposition of consecutive sentences, Trial Court did not properly consider general sentencing guidelines provided by legislature of Pennsylvania; (2) Trial Court sentenced the Defendant based solely on the seriousness of offenses and failed considered all relevant factors; (3) The sentence imposed is not consistent with the gravity the offense as it relates to the impact on the life the victim community, well as the Defendant's rehabilitative needs; (4) the sentence is manifestly excessive it is grossly proportionate his crime, particularly light the facts surrounding the criminal episode and his background; (5) judge failed provide adequate reasons on record for the sentence; (6) the verdict against weight evidence; (7) evidence was insufficient as a matter of law convict Defendant of Criminal Attempt- Rape Forcible Compulsion; and (8) the Trial Court failed to sustain or overrule two objections.
PROCEDURAL HISTORY Defendant, Hector Gonzales was arrested and charged with Criminal Attempt- Rape Forcible Compulsion under 18 § 901 §§ Al, graded as a Felony of the First Degree; Unlawful Restraint- Serious Bodily Injury under 18 § 2902 §§ Al, graded as a Misdemeanor of the First Degree; Indecent Exposure under 18 § 3127 §§ A, graded as a Misdemeanor of the Second Degree; Recklessly Endangering Another Person under 18 § 2705, graded as Misdemeanor the Second Degree; Criminal Attempt- IDSI Forcible Compulsion under 18 § 901 §§ A, graded as a Felony of First Degree; Criminal Attempt- Sexual Assault under 18 § 901 §§ A, graded a Felony of the Second Degree; and Indecent Assault Forcible Compulsion under § 3126 §§ A2, graded as Misdemeanor the Second Degree. The arrest stems from events that occurred the city and county Philadelphia on July I, 2013 around 11:00 p.m., during which the Defendant sexually assaulted two women who were strangers to him, near park area in Kensington Section of Philadelphia. Following preliminary hearing, Bills of Information related offenses were listed after arraignment under CP8-51-CR- involving complainant victim 0013381-2013 Bills Information related offenses related complainant
Q. were listed after arraignment under CP#-51-CR-0013380-2013.
On March 17, 2015, jury selection began before the Honorable Anne Marie B. Coyle Judge Court Common Pleas for the First Judicial District. The case chief presented by the Commonwealth Pennsylvania, by and through its Assistant District Attorney Lindsay Kenney, began March 18, 2015 and was completed on March 19, 2015. The Trial Court entered Order denying Motion Judgement Acquittal orally filed on behalf Defendant, by and through his trial counsel Gina Capuano, on March 2015.
After due deliberation, jury verdicts of guilty were entered on March 19, 2015. The empaneled jury found the Defendant guilty of five criminal offenses: (I) Criminal Attempt- Rape Forcible Compulsion under 18 § 901 §§ Al; (2) Criminal Attempt- IDSI Forcible Compulsion under 18 § 901 §§ A; (3) Unlawful Restraint- Serious Bodily Injury under 18 § 2902 §§ Al; (4) Indecent Exposure tinder 18 § 3127 §§ A; and (5) Indecent Assault Forcible Compulsion under 18 § 3126 §§ A2.
As presiding trial jurist, Honorable Anne Marie B. Coyle, Judge of Court of Common Pleas for the First Judicial District, directed completion of Presentence Evaluations by the First Judicial District Probation and Parole Department, well as Mental Health Evaluation, and Megan's Law Assessment. The Defendant retained new trial and appellate counsel, Nino Tinari, Esquire. On July 2015, after review of all completed presentence reports and consideration of all relevant data submitted concerning Defendant at full and fair sentencing hearing, Honorable Anne Marie B Coyle imposed the following sentences: under 18
Count 1- Criminal Attempt- Rape Forcible Compulsion (Victim- § 901 §§ Al : Minimum ten (10) years state term of confinement to Maximum twenty (20) years state term confinement; under 18 §
Count 2- Unlawful Restraint- Serious Bodily Injury (Victim- 2902 §§ Al: Minimum one and one half (1.5) years state term confinement Maximum five (5) years state term confinement to run concurrently to Count 1; ) under 18 § 3127 §§ A: Minimum one Count 3- Indecent Exposure (Victim- (1) year state term confinement to Maximum (2) years state term confinement to run concurrently to Count 1; 'V I ) under 18 Count 5- Criminal Attempt- IDSI Forcible Compulsion (Victim- § 901 §§ A: Minimum ten (10) years state term confinement Maximum twenty (20) years state term confinement run consecutively Count 1; e. under 18 § 3126 §§ Count 7- Indecent Assault Forcible Compulsion (Victim- A2: Minimum one (1) year state term confinement Maximum two (2) years state term confinement to run consecutively Counts 5. *15 The aggregate sentence imposed totaled a minimum of twenty one (21) years state term of confinement to a maximum of forty two (42) years state term of confinement. Court also determined the Defendant was a Tier III, Sexually Violent Predator; directed Defendant to comply with all Megan's Law requirements; ordered the Defendant stay away from the victims; required Sex Offender Supervision; random drug screens and treatment; and ordered the Defendant avail himself of any vocation and education trainings offered during the term of confinement.
On August 4, 2015, counsel on behalf of the Defendant, filed a Post Sentence Motion. This Motion denied on December 4, 2015. On December 4, 2015, Defendant filed a timely Notice Appeal to Superior Court Pennsylvania. On December 21, 2015, this Court ordered Defendant to file a concise Statement Errors Complained on Appeal pursuant to Pa.R.A.P. 1925(b). On January 2016, counsel requested an extension time, which was granted on the same day. This Court granted an extension for thirty (30) days. On February 11, 2016, a Statement Errors Complained on Appeal was filed on behalf the Defendant.
FACTUAL HISTORY
At trial, the Commonwealth Pennsylvania established the Defendant, Hector Gonzales, C,.° who were strangers him, as they initially accosted two females, walked through a park area near 3rd & Cumberland Streets in Philadelphia on July 1, 2013, around testified she received a phone call earlier from her friend p.m. Specifically, house and stopped at
asking meet for a night out at a local pub. c ingest two Xanax iutirer testified that she witnessed waited downstairs. pills, which were prescribed her. These two friends walked a bar neighborhood, where they each drank shot and beer. When these two females later passed bar, male on bike unequivocally identified this male approached them along North Fourth Street. *16 courtroom as the Defendant Hector Gonzales. She explained that Defendant kept following quickly replied them as they walked through the park. He offered cigarette, to whic "no, and get away."
estified Defendant stated that he was "trying to have fun," and repeatedly suggested that he and they engage in "threesome," and made repeated foul mouthed sexual requests. The Defendant ignored women's entreaties to leave them alone and their clear informed him statements that they were not interested in his crude sexual advances. that they were not interested the attention any males. The Defendant then became aggressive with her friend MN, and began touching her on her hands and breast. (N.T. 03/18/2015, pp. 29- 37). Defendant continued to badger both women, "talking dirty," and stating that he wanted C grabbed her shoulder, felt her breast.
to have three-way orgy. The Defendant walked up to She immediately pushed him away. MI stated to him to leave am alone because she was messed up because Xanax and alcohol. She clearly voiced to him that he should leave the area entirely and go to where the prostitutes were available...I started walking away, towards returned with her friends, she witnessed the bar, alert her friends help them. When me. she lay on ground struggling Defendant, with his pants down, pounding on top of and her two friends "0" "Black" started pulling the and yelling fend him off her. pants had ; Defendant's underwear down his ankles. Defendant off of been pulled dawn her legs and her underwear ripped. She was hysterical. (N.T. 03/18/2015, pp. 43-46). testimony at trial strongly corroborated her friend's recollection events
t C.Q. walked away meet their friends, estified that when evening. *17 Defendant jumped on top her and pulled to ground in a park area. She testified that Defendant pulled out his penis, and attempted to insert his penis in her mouth and tried to go in her pants. la 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 that night. also testified that the Defendant, while his hands were in her pants, ripped
m+R. 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 Defendant off her as she IS C friends struggled on ground. The Defendant ran down an alley way naked, with in hot pursuit. When the Defendant entered a house, multiple people called police reporting a naked man running down the street being chased by group people and observing a naked man sitting on front steps home the 2600 block Orianna Street. (N.T. 03/18/2015, pp. 83-85).
Philadelphia Police Officer Jason Judge credibly testified to responding to a radio call that dispatched him area 3'd and Cumberland Streets Philadelphia. Upon arrival he was approached by two upset women who had excitedly reported that the Defendant approached them and attempted to sexually assault them after being rebuffed by his unwanted advances. They and other person directed responding officers toward 2600block Orianna Street path Defendant's flight. , told him that male,
Police Officer Judge, testified that complainant, v. who complete stranger her sexually assaulted her by attempting penetrate her vagina, and that she had tried fight him. She told him that male then attempted place his penis in her mouth. Officer Judge further testified Illihiljelothes were disheveled, ripped and torn, that she appeared be visibly distraught. (N.T. 03/18/2015, pp. 130-136).
Philadelphia Police Officer Cyprian Scott, of the Philadelphia Police SWAT Team, testified that he and his team were called a report a male barricaded inside 2628 North Orianna Street, Philadelphia, PA., which was located block and one-half from the reported sexual assault location. Officer Scott further testified that upon arriving at house, he informed the male inside had been chased by citizens after committing a sexual assault. male inside, later idehtified as Hector Gonzales, 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 break through the front door.
Once inside the residential property, officers cleared the first floorland heard the Defendant moving upstairs second floor bedroom. The Defendant yelled to the officers that he would he would come down the stairs as long as his dog was unharmed. Per direction, the Defendant placed the pit bull terrier into second floor bedroom where he remained unharmed. The Defendant was finally subdued and arrested after positive identifications were made from victims. (N.T. 03/18/2015, pp. 145-147).
DISCUSSION
In his Statement Matters Complained on Appeal, Defendant asserts: (1) in its imposition of consecutive sentences, the Trial Court did not properly consider the general sentencing guidelines provided by Pennsylvania State Legislature; (2) the Trial Court sentenced the Defendant based solely on seriousness offenses and failed consider all relevant factors; (3) The sentence imposed is not consistent with the gravity the offense as it relates to the impact on the life victim community, well as Defendant's is grossly rehabilitative needs; and (4) sentence is manifestly excessive in that it disproportionate his crime, particularly light the facts surrounding criminal episode and *19 his background. The Defendant also claims the Judge failed to provide adequate reasons on the record for the sentence.
Additionally, the Defendant claims that the guilty verdict was against the weight the evidence, and evidence insufficient a matter of law to sustain a conviction for Criminal Attempt- Rape Forcible Compulsion (18 § 901 §§ Al), because the evidence was insufficient prove the Defendant attempted engage in sexual intercourse with a complainant. Lastly, Defendant asserts that the Court failed to sustain two evidentiary objections. However these two claims lack any merit, were harmless error light proceedings, and do not warrant any relief. Defendant's excessive sentence claim is not appealable without a more
I. specific claim for the source error. Defendant's claim that imposed sentences were excessive fails to even raise a substantial question necessitating appellate review because no additional and more specific violation sentencing code was cited support the argument. The Court's analysis begins with the established premise that appellate review discretionary aspects sentencing is not automatic. Cow. v. Mastromarino, 2 A.3d 581, 585 (Pa. Super. Ct. 2010). Only when a sentencing claim sets forth the manner which either particular provision Sentencing Code or an underlying fundamental norm of sentencing process was violated, does claim of excessiveness present substantial question. Corn. v. ilifouzon, 812 A.2d 617, 627(Pa. 2002).
Therefore, only when there is a substantial question as the sentence does party have a right appeal the court's determination. Pa. Cons. Stat. Ann. § 9781 (West). If such a substantial question exists, sentencing court is still given great deference during appeal, sentence can only be overturned if there was an abuse that discretion. Cam, v. Walls, 926 A.2d 957, 961 (Pa. 2007). The sentencing court is given broad discretion determine *20 aspects of a sentence because it is in the best position to evaluate the facts in that individual circumstance. Cart, v. Mouzon, 812 A.2d 617, 620 (Pa. 2002).
A blanket claim excessiveness, with no further allegations, does not create a qualifying substantial question for appellate review. Id. For instance, defendant in Mouzon claimed that he had been improperly denied an appeal based on the fact that his sentence, while large, was within statutory limit. Id. at 624. While Supreme Court remanded case because it disagreed with the Superior Court's reasoning concerning statutory limits, it specifically held that "bald allegations excessiveness" are not sufficient to create a substantial question because they do not identify manner which a sentencing provision or fundamental norm were violated. Id. at 627; See also Cont. v. Titus, 816 A.2d 251, 255-56 (Pa. Super. Ct. 2003) (explaining that the appeal in that case only presented issues as to whether the sentence was too harsh, which it considered bald allegation that sentence excessive that did not create a substantial question that entitled defendant to an appeal).
Moreover, specific reason as to why an excessive sentence is improper, beyond it simply being excessive, is needed raise substantial question. Cont. v. Raven, 97 A.3d 1253 (Pa. Super. Ct. 2014) appeal denied, 105 A.3d 736 (Pa. 2014); Coin. v. Sheller, 961 A.2d 187, 190 (Pa. Super. Ct. 2008). For instance, the defendant in Raven claimed that sentencing court failed consider pertinent mitigating factors when formulating his sentence. Id. at 1248. Superior Court considered this additional and specific allegation be sufficient to raise a substantial question and allowed the appeal go forward. Id. at 1253; See also Com. v. Riggs, 63 A.3d 780, 786 (Pa. Super. Ct. 2012) (determining the failure consider relevant sentencing factors laid out section Pennsylvania Code (the need protect the public, gravity crime, and the defendant's rehabilitative needs) presented substantial question).
Similarly, Com. v Sheller, 961 A.2d 190 (Pa. Super. Ct. 2008) defendant claimed that the sentence was improper because it exceeded recommended range without the sentencing court adequately stating its basis for the deviation. 961 A.2d at 189 (Pa. Super. Ct. 2008). Superior Court considered this claim, which went beyond simply claiming the sentence was excessive, be enough to raise a substantial question. Id. at 190; See also Com. v. Kenner, 784 A.2d 808, (Pa. Super. Ct. 2001) (granting appeal for the appellant for an overly lenient sentence only after determining that a substantial question was raised by sentencing court's issuing sentence thirty months below the recommended range without sufficient explanation).
In the instant case, no appeal is allowed because Defendant's combined claims are simply bald assertions based upon disagreement with the terms sentences imposed. In the Statement Matters Complained on Appeal, Defendant merely states sentence imposed was is manifestly excessive that it is grossly disproportionate to his crime, and that the trial court failed consider general sentencing principles, failed adequately examine Defendant's background, character, and rehabilitative needs, and failed place adequate reasons on the record for the sentence given. The Defendant makes no additional concrete claims about how the excessive sentence was result an error by trial court.
Even if is determined that there substantial question raised by Defendant's allegation that the trial court failed consider certain sentencing factors, his argument does not meet abuse discretion standard appellate review. In this case, this Court incorporated and specifically referenced its analysis all the relevant and detailed sentencing data concerning Defendant's background presented within written and oral arguments proffered by all parties including the Presentence Investigative Reports that the trial court had directed be completed.
In addition, all parties and counsel agreed that this Court required to impose a minimum ten years incarceration the lead felonies pursuant to the statute as "Second Strike" offense. This Court expressly considered the recommended ranges sentences pursuant to the guidelines for sentencing and resentencing as adopted by the Pennsylvania Commission on Sentencing as it related each individual charge. As the instant case involved sexual assault of two females, Megan's Law Assessment corresponding evidentiary hearing were properly conducted. On record, this Court specifically incorporated stated reasons for the sentences from the evidentiary hearing and provided reasonable supplemental factors on record before imposing sentence. imposition of consecutive terms of sentence opposed concurrent terms of
sentence is not viewed as raising a substantial question that would allow granting allowance appeal our Commonwealth. Cont. v. Marts, A.2d 608 (Pa. Super. 2005). Pursuant 42 Pa. C.S.A. § 9781(d) (1) and (3), this Court was well within its discretionary right impose the sentences consecutively. In instant matter, this Court exercised reasonable discretion when it determined that sentences for three the seven criminal offenses for which jury rendered verdicts guilt, should run consecutively. Individualized consecutive standard sentences upon the Defendant were imposed only after careful consideration of all relevant sentencing factors including paramount need for protection of public, the gravity of offense, Defendant's prospect for rehabilitation. Hence, the Defendant has not raised any substantial question consecutive sentences imposed were inappropriate or contrary to a fundamental norm underlying the sentencing code.
The weight given by the Court relevant sentencing factors does not present a substantial question because this simply raises disagreement about this Court's determination of *23 facts and the weight of factors. Again, the sentencing court is given broad discretion formulating sentence, with no automatic right review available. Corn. v. Mastroenarino, 2 A.3d 581, 585 (Pa. Super. Ct. 2010). An appeal can only be granted if there is substantial question as to a violation a specific sentencing code or a fundamental norm. 42 Pa. C.S.A. § 9781; Mouzon, A.2d at 627.
In the instant case, the Defendant generally avers that this Court did not give enough weight "particular circumstances offense and the character defendant." Although a claim that a sentencing court failed consider mitigating circumstance be a substantial question, mere disagreement, however, about how factors are weighed does not create substantial question, since it is the sentencing court's role appraise the importance the relevant facts. Coin. v. Raven, 97 A.3d 1244, 1253 (Pa. Super. Ct. 2014) appeal denied, 105 A.3d 736 (Pa. 2014); Corn. v. Zirkle, 107 A.3d 127, 133 (Pa. Super. Ct. 2014), reargurnent denied (Feb. 2015). Defendant Hector Gonzalez does not pinpoint any particular mitigating circumstance not being considered. As written, this blanket claim, essence, amounts his disagreement
with the recorded findings fact by this Court. Moreover, record abundantly dispels any notion that this trial court did not thoroughly assess and identify all relevant mitigating and aggravating factors from ample evidence presented.
In reviewing record, appellate court shall have regard for: "(1) the nature and circumstances offense and the history and characteristics defendant; and ... (3) the findings upon which sentence was based." 42 Pa. C.S.A. § (d) (1) and (3). At sentencing, trial court was keenly concerned that previous attempts rehabilitate Defendant had failed. This was evidenced by recitation facts contained within the Presentence Reports Investigative Reports prepared by the Adult Probation Parole Department. (N.T. 07/31/2015, pp. 29-31).
I2 *24 The Court noted on the record that the Defendant absconded from juvenile commitment facility, had multiple narcotics convictions, and multiple convictions for violation of the Uniform Firearms Act.
At the very beginning and at the end of sentencing hearing, all parties agreed that Mandatory Minimum Sentences ten years confinement must be imposed lead offenses because Defendant qualified per statute as Second Strike Offender. In addition, this Court amply addressed the guideline calculations presented within the Presentence Investigative Reports. Each attorney agreed with computation Offense Gravity Scores for each offense and Prior Record Score tabulated pursuant guideline recommendations derived from the Pennsylvania Commission on Sentencing. Indeed, each period confinement imposed per charge fell squarely within the agreed upon recommended guideline sentencing ranges statutory mandatory minimum requirements.
A reasonable sentence is one that includes examination the public protection, the crime's gravity, and defendant's rehabilitative needs, as listed section 42 the Pennsylvania Code. 42 Pa. Cons. Stat. Ann. § 9721 (West); Walls, 926 A.2d at 964. Additionally when the sentencing court has reviewed presentence report, it is presumed court has considered information it contains. Can. v. Boyer, 856 A.2d 154 (Pa. Super. Ct. 2004) affd 891 A.2d 1265 (Pa. 2006). Facts can be considered, pursuant § 9721(b)'s sentencing requirements, even if the facts are subsumed within the guideline recommendation. Corn. v. Sheller, 961 A.2d 187, (Pa. Super. Ct. 2008). This Court explicitly and implicitly touched upon all required considerations 42 Pa. C.S.A. § 9721(b) when it considered Defendant's background, current situation and the nature crimes he committed.
Within outlined reasons for imposition of sentences, this Court explicitly incorporated the findings and conclusions presented by Dr. Barbara Ziv. Specifically, regarding Megan's Law evidentiary hearing, Court heard credible testimony from Dr. Barbara Ziv concerning the criteria used classify someone a sexually violent predator ("SVP") in Pennsylvania. Dr. Ziv testified that there are two prongs the statute: (1) the issue of a mental abnormality or personality disorder that renders someone likely reoffend; and (2) the issue of predatory behavior. Predatory behavior is an act directed at stranger or person with whom relationship had been initiated or established, in order promote or support victimization. Additionally, Dr. Ziv testified that to classify an individual as SVP, characteristics both offender victim are addressed. Dr. Ziv concluded that Defendant met both prongs for the criteria SVP. (N.T. 07/31/2015, pp. 8-15).
Dr. Ziv also testified that, in her expert opinion, Mr. Gonzales meets the criteria for Antisocial Personality Disorder, She explained that it constitutes deviant sexual behavior to become aroused or interested by stranger in a violent act. Mr. Gonzales displayed pattern of disregard for and violation the rights others. This pattern behavior was firmly established within Defendant's reported criminal history that Dr. Ziv had reviewed. As an adult, Hector Gonzales had accumulated fourteen (14) adult criminal arrests, resulting in multiple convictions for serious offenses and three juvenile arrests which he was adjudicated delinquent twice. Dr. Ziv noted the impulsivity ingredient present for niany Mr. Gonzales's crimes. Additionally, the irritability and aggressive nature crimes committed, and reckless disregard for the safety self and others was also highlighted.
Lastly, Dr. Ziv testified how Mr. Gonzales met predatory behavior prong statute. She cited fact the two women were strangers; Mr. Gonzales did not seem to *26 previously plan the attack;, and when women refused him, he became aggressive in a sexual nature. It was also remarked that, although Mr. Gonzales declined to be interviewed, Dr. Ziv had sufficient information provide her conclusions. Id. This Court expressly stated its agreement with Dr. Ziv's findings and conclusions when determining that Mr. Gonzalez met the criteria a Sexually Violent Predator identified in the statute.
On record this Court specified it reviewed all relevant data sources supporting its decision and recited specific reasons for each finding as follows:
"...Factor No. Whether or not offense involved multiple victims: it did. It all in one day and it was very long day for both those victims who were both strangers this Defendant and clearly demonstrated any reasonable human being they had no interest in Mr. Gonzalez.
No. 2: Whether or not this individual exceeded the means necessary to achieve offense: I find that he specifically exceeded the means necessary to achieve this offense the manner in which he restrained and assaulted after he groped the other young lady and was violent. The relationship to the individuals -to the victims -they were strangers to him. The ages the victims were and 30 years old.
Factor No. 6: Whether or not this offense displayed an unusual amount of -f9ndant during commission his crime: I note his extreme
cruelty by th- I remember her because she was someone who was of cruelty to very limited ability both physically and mentally. Mental capacities of the victim -actually while its not noted the It assessment, I did have the opportunity to observe both victims and the two, had considerable deficits that were easily observable to Mr. Gonzalez. The other young lady -whose name escapes me for the moment, I'll come back that- had lot more strength her, and indeed is reason why this offense ended, because she enlisted help." (N.T. July 31, 2015 Pgs. 28-31.) In addition, this Court incorporated its thorough review relevant data contained within Pre -Sentence Reports and Mental Health Assessments. This Court referenced Defendant's documented addiction multiple illegal narcotic substances, including heroin and
l5 *27 marijuana beginning the age of fifteen years old. This Court also remarked that multiple failed efforts rehabilitate the Defendant following the two adjudications delinquency. This Court also noted that in the Defendant had been formerly committed by a Court into the Don Guanella Juvenile Program address his addictions and delinquency causes and that he absconded from program after a short stay only thirty (30) days. His immediate family reported that the Defendant juvenile could not be controlled. As result his historical non-compliance one his later juvenile arrests resulted adult certification.
Overall, this Court was cognizant of fact that the Defendant's poor adjustment to supervision as a juvenile continued through adulthood. As an adult, he accumulated fourteen arrests resulting eight convictions with five commitments for serious offenses including Robbery, Carrying A Firearm, Delivery Controlled Substances. He had violated previously imposed terms under parole or probationary periods of supervision. He hampered efforts of evaluators understand him. For instance, Defendant abruptly terminated interview conducted by the Pre -Sentence Investigator "after realizing that this investigator was unable to provide him with specific information regarding his sentencing." (See Excerpt Page the Pre - Sentence Report)
This Court reasonably concluded Defendant, who thirty-nine years age, demonstrated high likelihood or reoffending and high rate of sexual recidivism and incorporated this finding within multiple reasons for the imposing sentences. This Court formally supplemented its detailed findings with its review underlying circumstances from Defendant's prior conviction for Robbery which had formed the basis for imposition mandatory minimum ten year sentence on the record as follows:
"... Mr. Gonzalez, at this point in time, sir, I do incorporate all the findings that I previously stated in reference to the Megan's Law Assessment into the consideration of my sentence.
I've reviewed all the information provided thus far. I've also reviewed the guidelines in this matter, well as the fact that this is a second strike. I supplement my findings because I noted that with respect the first strike, sir, the robbery, that was also of a woman; a 40 -year old woman whose unfortunate position was be seated her parked vehicle. She was greeted by you producing a firearm and threatening "Get off my fucking arm or I'll blow your brains out." You were convicted after a waiver trial on May 23, 2000 for that offense.
So I have a great deal of concern about you and your future and the future folks in Philadelphia when you are released because I do find that your risk recidivism is extremely high." (See N.T. July Pages 42-43.) In short, this trial court thoroughly investigated and succinctly referenced all relevant sentencing factors before entering the Order Sentence. No abuse discretion occurred. The verdict not against weight of the evidence present at trial.
H. The Defendant next summarily contends that "jury verdict was against weight of evidence" at trial. The Defendant does not specify which verdict at which charge was claimed to be insufficiently supported. Supreme Court has set forth following standard review for weight of the
evidence claims:
"The essence appellate review for weight claim appears lie ensuring that the trial court's decision has record support. Where the record adequately supports the trial court, the trial court has acted within limits its discretion." Corn. v. Roberts, 2016 Pa. Super 22, 133 A.3d 759, 770 (2016). A motion for a new trial based on claim verdict is against weight evidence is discretionally determined by the trial court. A new trial should not be granted because or mere conflict in the testimony or because judge on the same facts would have arrived at different conclusion. Rather, the role
trial judge is 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.
An appellate court's standard of review when presented with a weight of the evidence claim is distinct from the standard of review applied by trial court. Appellate review of a weight claim is review the exercise discretion, not the underlying question of whether the verdict is against the weight the evidence. Commonwealth v. Clay, 619 Pa. 423, 64 A.3d 1054- 55 (2013) (citations and quotation omitted). In order for an appellant prevail on challenge to weight evidence, "the evidence must be so tenuous, vague and uncertain that the verdict shocks conscience of court." Commonwealth v. Sullivan, A.2d 795, 806 (Pa. Super.2003) (citation omitted).
In instant case, the record clearly supports conviction for all charges including offense Attempted Rape. As previously stated, Defendant stalked and sexually harassed two women who were strangers to him as they walked through park at night. After repeated requests by the women for the Defendant to leave them alone, as well as both women refusing to and participate in a three-way orgy public, Defendant indecently assaulted WV 14.
then violently attacked
credibly testified that after her friend went across street bar get help, Defendant suddenly jumped on top her and dragged her onto the ground into a nearby dark park area, pulled her clothes down her ankles he forcibly kept her pinned on the ground and testified ripped her underWear, attempted insert his penis into her mouth and bottom. that when she returned with aid, she saw Defendant on top her friend with his pants down while her friend was yelling and vainly trying to get him off her. She observed hysterical. She stated it took ripped disarrayed clothing and tha *30 multiple persons to get him off of her friend who was and remains a plainly observably disabled diminutive person.
The victims' credible testimony was also corroborated by responding uniformed Philadelphia Police Officers who testified that the two distraught women immediately reported what had happened, and provided the direction of Defendant's flight. Officers noted that both women were highly emotional and that [116] appeared quite disheveled. The Defendant's response by ignoring the efforts and commands of police officers within the three hour standoff with the SWAT unit uniquely reflected his consciousness guilt. The overall evidence introduced in this instant matter was far from tenuous, vague or uncertain that the verdict shocked conscious the court. To the contrary, evidence was sufficiently compelling support each verdict guilty for each charge.
III. The evidence presented at trial was sufficient to prove beyond a reasonable doubt that the Defendant, Hector Gonzales, attempted to engage in sexual intercourse with the complainant. Defendant also contends the evidence at trial was insufficient as a matter law sustain a conviction Criminal Attempt- Rape Forcible Compulsion (18 § 901 §§ A), because evidence insufficient prove that the Defendant attempted to engage "in sexual
intercourse with a complainant." 18 § 3121 §§ A. In reviewing sufficiency evidence, an appellate court considers "whether evidence presented at trial was sufficient establish all elements crime beyond reasonable doubt." Commonwealth v. Burton, A.3d 598 (Pa. Super. Ct. 2010). The appellate court views all of evidence reasonable inferences therefrom light most favorable Commonwealth verdict winner. Id. Where there is sufficient evidence enable trier fact to find every element crime has been established beyond reasonable doubt, sufficiency of evidence claim must fail. Id. The evidence
established at trial need not preclude every possibility innocence and the fact -finder is free to believe all, part, or none the evidence presented." Commonwealth v. Feliciano, 2013 Pa. Super 117, 67 A.3d 19 quoting Commonwealth v. Stokes, 2011 Pa. Super 261, 38 A.3d 846, 853-854 (2011) (internal citations and quotations omitted).
In defining the crime rape, 18 Pa. C.S.A. 3121 provides: "a person commits felony of the first degree when he engages in sexual intercourse with another person not his spouse: (1) by forcible compulsion; (2) by threat forcible compulsion that would prevent resistance by person reasonable resolution. Criminal attempt is defined by 18 Pa. C.S.A. 901(a): "a person commits an attempt when, with intent commit specific crime, he does any act which constitutes a substantial step toward commission crime." Commonwealth v. Russell, 313 Pa. Super. 534, 542, 460 A.2d 316, 320 (1983).
In instant case, the Defendant jumped on top victim, pulled his pants down, and ripped her underwear down her ankles. He further fondled her breast, attempted insert his penis into her mouth and vagina. The Defendant only stopped when victim's friends began pulling him physically pulling him off of her. "The substantial step test broadens scope attempt liability by concentrating on the acts defendant has done and does not any longer focus on acts remaining to be done before actual commission the crime." Commonwealth v. Gillian, 273 Pa. Super. at 589-90, 417 A.2d at 1205 (1980). Additionally, intent can be proven by direct or circumstantial evidence; it may be inferred from acts or conduct or from the attendant circumstances. Commonwealth v. Gregory, Pa. Super. 406 A.2d 539 (1979). The supporting facts listed above paragraphs amply establish Defendant's intent commit rape. Fortunately his malicious intent and committed efforts were thwarted by spirited Samaritans. Defendant's claims fail state any basis for relief
IV. The claims regarding the trial court's response to two individually raised objections at trial even as alleged did not present any harmful error. The Defendant contends that: "After an evidentiary objection by the Defendant, the Trial Court failed to sustain or overrule the objection, stating to witness on the stand, "Just tell us keep these people off the street, because anything could happen kid or little
girl." (See N.T. March 18, 2015, page 34.) C At this point, Defense raised an objection. Because simply providing her motivation for encouraging press charges, this Court redirected her once again by stating. "All right. OK, Go ahead." (See N.T. March 2015, page 36.) Subsequently, upon further examination she clarified the reasons for her statements impressions. Her comment was not prejudicial. No harmful error occurred necessitating the extreme measure granting a new trial.
CONCLUSION
In reviewing entire record, this Court finds no harmful, prejudicial, or reversible error. Accordingly, the judgment the trial court should be affirmed.
By the Court, 71/0/ DATE: / /// /76 41e-,4girr
nne M. y what you remember seeing," See Notes of Testimony, March at 34." The referred C Q transcribed notes testimony reflect witness who had been speaking was who was providing lengthy emotionally charged and rapidly spoken recitation of all events C during direct examination. Towards the end this block this testimony stated: "...He had the bike. That's when I seen my friends "0" and Black. I told them to come. I was telling them because they were asking what's going on. I was telling them there's this guy who's talking nasty to us and he just don't waata go. They came over there. As I walking, I seen him in the back on top SS with his shorts on floor, his underwear was down to his ankles, and I seen her trying to push of him off, And I don't' know what she was saying, but I know it was something, like, probably telling him to get off her." transcribed testimony then reflects an objection attributed to prosecutor. Even assuming objection actually was raised by the defense, Court's response objection was fair. In an abundance caution since it was unclear as whether her last comment was a combined deduction what she had perceived or an opinion what she was perceiving, this Court interrupted and correctly redirected this upset lay witness her by instructing her "Just tell us what you remember seeing. Afterward, clarified her testimony by confining herself relating her observations. continued giving her direct testimony uninterrupted until she stated follows: "... He was trying get into house. I didn't know he lived there. He was trying to kick the door and couldn't get in. Then he went through alley way. So I guess then he went through back, I kept telling them call the cop. We waiting outside front his house for the cops. They made it and they came. That's when they found him in house. Then they was asking if she wanted to press charges, and I told her, yes, do it. I been situations like this, and we need