J-S54023-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARIO ABLE GUEVARA                         :
                                               :
                       Appellant               :   No. 342 MDA 2019

        Appeal from the Judgment of Sentence Entered October 9, 2018
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0005700-2017


BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.:                          FILED NOVEMBER 12, 2019

        Mario Able Guevara appeals from the judgment of sentence, entered in

the Court of Common Pleas of Berks County, after a jury convicted him of

involuntary deviate sexual intercourse (IDSI),1 intimidation of a victim,2

sexual assault,3 indecent assault (forcible compulsion),4 indecent assault (lack

of consent),5 and false imprisonment.6 Upon careful review, we affirm.

____________________________________________


1   18 Pa.C.S.A § 3123(a)(1).

2   18 Pa.C.S.A. § 4952.

3   18 Pa.C.S.A. § 3124.1.

4   18 Pa.C.S.A. § 3126(a)(2).

5   18 Pa.C.S.A. § 3126(a)(1).

6   18 Pa.C.S.A. § 2903(a).
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        Between January of 2014 and October of 2017, Guevara supervised

X.P.7 at Witman’s Cleaning Service (Whitman’s).      X.P.’s duties included

cleaning a warehouse in Fleetwood, Pennsylvania. On October 6, 2017, while

X.P. was working alone in the warehouse, Guevara sneaked behind X.P. and

grabbed her chest. X.P. told Guevara he was scaring her and demanded he

leave her alone. Initially, he complied. X.P. resumed her work and began

cleaning a warehouse bathroom.

        While X.P. cleaned a toilet, Guevara entered the bathroom, shut the

door, told X.P. there were no cameras, and bear hugged her. X.P. freed her

hands and hit Guevara. He responded by pinning her against the counter with

one hand, pulling her blouse down with the other, and biting her breast.

Guevara then forced one hand inside X.P.’s underwear and began removing

her pants. Guevara then placed his mouth on her vagina. X.P. freed herself

when Guevara attempted to use both hands to perform a sex act.

        Outside the bathroom, X.P. accused Guevara of rape, to which he

responded by saying no one would believe her because he did not penetrate

her. He further stated no one would believe her without proof, and that she

would lose her job. Once Guevara left the warehouse, X.P. went straight home

and told her daughter what transpired in the warehouse. Over her daughter’s

protests, X.P. refrained from contacting the police because she believed she

would lose her job, as Guevara was married to the niece of Whitman’s owner.
____________________________________________


7   We refer to the victim by her initials.


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She also knew Guevara was aware she needed her job at Whitman’s to support

herself and her children. X.P. did not report the incident to the police until

after confronting Guevara and recording their conversation on her cell phone.

        At the conclusion of a three-day trial on June 27, 2018, a jury convicted

Guevara of the above-mentioned offenses. The court sentenced Guevara to

an aggregate term of seven-and-a-half to twenty years’ incarceration.

Guevara was also required to register with the Pennsylvania State Police for

life, pursuant to the Sexual Offender Registration and Notification Act

(“SORNA”).8      On October 15, 2018, Guevara timely filed post-sentence

motions, which were denied by operation of law on March 20, 2019. In the

interim, on February 21, 2019, Guevara timely filed the instant notice of

appeal.9 On March 14, 2019 Guevara filed a court-ordered Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal.

        Guevara raises the following issues for our review:

        1.    Whether the Commonwealth failed to present sufficient
              evidence to support a guilty verdict for [i]ntimidation of
              [w]itnesses or [v]ictims as no evidence was presented at
              trial to show that [Guevara] used/threatened force,
              violence, or deception in any alleged efforts to intimidate
              the alleged victim to support [t]he grading as a felony of the
              first degree[?]



____________________________________________


8   42 Pa.C.S.A. § 9799.55(b)(2).

9Notices of appeal “filed after the announcement of a determination but before
the entry of an appealable order shall be treated as filed after such entry and
on the day thereof.” Pa.R.A.P. 905(a)(5).

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      2.    Whether the trial court erred and abused its discretion when
            it instructed the jury that “oral contact with female genitalia
            is sufficient to support the penetration requirement for
            IDSI[,]” which allowed the jury to convict [Guevara] of both
            IDSI and sexual assault based upon something less than the
            required element that [Guevara]               penetrated the
            complainant’s vagina[?]

      3.    Whether the trial court erred by entering guilty verdicts as
            to the charges of IDSI, [i]ntimidation of [w]itness/[v]ictim,
            [s]exual     assault,    [i]ndecent     [a]ssault—[f]orcible
            [c]ompulsion, [i]ndecent [a]ssault—[l]ack of [c]onsent, and
            [f]alse imprisonment as the verdicts were against the
            weight of the evidence, where the alleged victim’s testimony
            was not credible and contradicted by other evidence
            admitted during trial[?]

      4.    Whether the trial court erred as a matter of law and imposed
            an illegal sentence of lifetime sex offender registration as
            the requirements of [SORNA] are punitive and the statutory
            maximum sentence for the registerable offense, IDSI, is 20
            years[?]

Brief of Appellant, at 12–14.

      In his first claim, Guevara contends his conviction for victim intimidation

rests on insufficient evidence, arguing his statements “that no one would

believe [X.P] if she reported the incident and that she would lose her job if

she made the claim without proof” did not demonstrate that he “obstruct[ed],

impede[d], impair[ed], prevent[ed] or interfere[d] with the administration of

justice.” Brief of Appellant, at 24.

      We evaluate challenges to the sufficiency of the evidence under the

following, well-established standard:

      We review claims regarding the sufficiency of the evidence by
      considering whether, viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient

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      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. Further, a conviction may be
      sustained wholly on circumstantial evidence, and the trier of fact—
      while passing on the credibility of the witnesses and the weight of
      the evidence—is free to believe all, part, or none of the evidence.
      In conducting this review, the appellate court may not weigh the
      evidence and substitute its judgment for the fact-finder.

Commonwealth v. Strafford, 194 A.3d 168, 174 (Pa. Super. 2018)

(citations and quotations omitted).

      The Crimes Code, in relevant part, defines intimidation of witnesses or

victims as follows:

      § 4952. Intimidation of witnesses or victims

      (a) Offense defined.--A person commits an offense if, with the
      intent to or with the knowledge that his conduct will obstruct,
      impede, impair, prevent or interfere with the administration of
      criminal justice, he intimidates or attempts to intimidate any
      witness or victim to:

            (1) Refrain from informing or reporting to any law
            enforcement officer, prosecuting official or judge concerning
            any information, document or thing relating to the
            commission of a crime.

18 Pa.C.S.A. § 4952(a)(1).

      Further, we observe:

      Actual intimidation of a witness is not an essential element of the
      crime. The crime is committed if one, with the necessary mens
      rea, “attempts” to intimidate a witness or victim[.] The trier of
      the facts, therefore, could find that appellant attempted to
      intimidate his accuser and that he did so intending or, at least,
      having knowledge that his conduct was likely to, impede, impair
      or interfere with the administration of criminal justice[.] The
      Commonwealth is not required to prove mens rea by direct
      evidence. Frequently such evidence is not available. In such
      cases, the Commonwealth may rely on circumstantial evidence.


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Commonwealth v. Beasley, 138 A.3d 39, 48 (Pa. Super. 2016); see also

Commonwealth v. Von Evans, 163 A.3d 980, 986 (Pa. Super. 2017) (“[T]he

factfinder may consider the nature of the underlying crime in evaluating the

totality of the circumstances to determine whether the defendant intended to

induce or to intimidate a witness from not testify at the trial for the underlying

crime[.]”).

      Prior to X.P.’s assault on October 6, 2017, Guevara knew X.P. provided

the sole source of financial support for her children. N.T. Trial, 6/25/18, at

97–98. Guevara was also aware X.P. knew he was related to Whitman’s owner

by marriage.     See id. (recounting prior incident where Guevara’s wife

threatened to have her aunt fire X.P. after Guevara made unsolicited advances

towards X.P.). Immediately after the assault, Guevara repeatedly told X.P.

no one would believe her, specifically stating “[n]o one is going to believe you

because I didn’t penetrate you.” Id. at 96.      Critically, he further told X.P.

“[she] didn’t have any proof, and [she] was going to lose [her] job.” Id. at

97. These statements so unnerved X.P., she refused to report the incident

until after recording a conversation with Guevara. Id. at 100–103.

      The circumstances surrounding the assault of X.P.—including averments

that no one would believe her, that she lacked proof, and that she would lose

her job—clearly evince Guevara’s intent to intimidate X.P. such that she would

“[r]efrain from . . . reporting to any law enforcement officer . . . any

information . . . relating to the commission of a crime.”        18 Pa.C.S.A. §


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4925(a)(1); see Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015)

(finding history of appellant’s threatening behavior towards his wife coupled

with demands not to testify rendered furnished sufficient evidence under

section 4952).    Consequently, Guevara’s conviction for victim intimidation

clearly rests upon sufficient evidence. See Doughty, supra at 958.

      Next, Guevara argues the trial court instructing the jury that “‘[o]ral

contact with female genitalia is sufficient to support the penetration

requirement of IDSI’” was an abuse of discretion, because it eliminated the

Commonwealth’s burden to prove penetration.          Brief of Appellant, at 25

(quoting N.T. Trial, 6/27/18, at 130).

      Preliminarily, we examine whether Guevara has preserved his claim on

appeal.    Objections to jury instructions must first be made “beyond the

hearing of the jury” before “the jury retires to deliberate.”       Pa.R.Crim.P.

647(C).     However, to preserve an objection raised during a charging

conference, trial counsel must renew his or her objection after the offending

instruction is offered by the court to the jury.      See Commonwealth v.

Parker, 103 A.3d 17, 29–30 (Pa. Super. 2014) (“Appellant has . . . waived

his objection to the jury instructions because he failed to object after the jury

had been charged.”).     Our Supreme Court explicated this requirement as

follows:

      Although obligating counsel to take this additional step where a
      specific point for charge has been rejected may appear
      counterintuitive, as the requested instruction can be viewed as
      alerting the trial court to a defendant’s substantive legal position,

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      it serves the salutary purpose of affording the court an opportunity
      to avoid or remediate potential error, thereby eliminating the need
      for appellate review of an otherwise correctable issue.

Commonwealth v. Pressley, 887 A.2d 220, 224 (Pa. 2005).

      Instantly, during the charging conference, Guevara’s trial counsel

objected to the Commonwealth’s proposed jury amendment concerning the

definition of penetration in the context of IDSI. N.T. Trial, 7/26/18, at 71–74.

The court instructed the jury on the elements of IDSI, in relevant part, as

follows:

      Deviate sexual intercourse occurs if a person’s tongue penetrates
      the sexual organ of a woman. For all forms of deviate sexual
      intercourse, the slightest degree of penetration is sufficient, and
      no emission of semen is required. Oral contact with female
      genitalia is sufficient to support the penetration requirement for
      involuntary deviate sexual intercourse.

Id. at 130. When the court asked if counsel had anything to add, Guevara’s

trial counsel stated, “[n]o, Your Honor.” As counsel failed to object after the

court instructed the jury, his second claim is consequently waived. Parker,

supra at 29–30.

      Third, Guevara argues his convictions rest on weak and contradictory

evidence, rendering the jury’s verdict against the weight of the evidence. Brief

of Appellant, 27–28. Specifically, he claims photos on X.P.’s cell phone, which

show her working as a bartender after the assault, are inconsistent with

“someone who was recently the victim of a crime.” Id. at 28.

      We review the trial court’s exercise of discretion in ruling on the weight

claim, not the underlying question of whether the verdict was against the

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weight of the evidence. Commonwealth v. Champney, 832 A.2d 403, 408

(Pa. 2003). It is not our role, as a reviewing court, to reweigh the evidence

and substitute our judgment for that of the fact-finder. Commonwealth v.

Mitchell, 902 A.2d 430, 449 (Pa. 2006). Where the challenge to the weight

of the evidence is predicated on the credibility of trial testimony, our review

is extremely limited; unless the evidence is so unreliable “as to make any

verdict based thereon pure conjecture, [such claims] are not cognizable on

appellate review.” Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super.

2009). We may only grant relief if the trial court’s verdict is “so contrary to

the evidence as to shock one’s sense of justice.” Champney, supra at 408.

      In the Honorable Patrick T. Barrett’s Rule 1925(a) opinion, he stated

“[a] witness’s credibility is solely for the jury to determine[,]” and

consequently, he refused to “second guess the verdicts[,] as the jury’s

determinations are not so contrary to the evidence as to shock one’s sense of

justice.” Rule 1925(a) Opinion, 5/23/19, at 8. We agree. At trial, the jury

heard X.P.’s testimony regarding the photos. N.T. Trial, 7/25/18, at 263–66.

X.P. stated she occasionally tended bar at “Jet Set,” but that she could not

remember if she went to work at Jet Set after being assaulted. See id. at 266

(“I don’t remember if I went to work after I was assaulted, but if I would have

had to go to work, I would have gone to work.”). Not only are we unable to

re-evaluate X.P.’s credibility, we are unsure as to how the existence of these

photos in any way contradicts X.P.’s testimony. Consequently, we cannot find


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Judge Barrett erred or abused his discretion in denying Geuvara’s weight

claim. Champney, supra at 408.

      Finally, Guevara claims the trial court erred as a matter of law by

ordering him to register as a sex offender for life under SORNA.         Brief of

Appellant, at 28–29. Guevara argues his sentence is illegal because it requires

a sexual offender to register for a period that exceeds the statutory maximum

sentence for the offense of which he was convicted. Id. at 29.

      A sentence is illegal where it exceeds statutory limits.                See

Commonwealth v. Bradley, 834 A.2d 1127 (Pa. 2003).               This Court has

repeatedly held “a sentencing requirement for a defendant to register as a

sexual offender for a period of time exceeding the lawful statutory maximum

for his offense is not illegal.” Commonwealth v. Martin, 205 A.3d 1247,

1250 (Pa. Super. 2019); see Commonwealth v. Bricker, 198 A.3d 371, 377

(Pa. Super. 2018); see also Commonwealth v. Strafford, 194 A.3d 168,

173 (Pa. Super. 2018). Rather,

      SORNA’s registration requirements are an authorized punitive
      measure separate and apart from Appellant’s term of
      incarceration. The legislature did not limit the authority of a court
      to impose registration requirements only within the maximum
      allowable term of incarceration; in fact, the legislature mandated
      the opposite and required courts to impose registration
      requirements in excess of the maximum allowable term of
      incarceration.

Bricker, supra at 377 (quoting Strafford, supra at 173).            Accordingly,

Guevara’s sentence is not illegal, and his final claim fails.



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     Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/12/2019




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