J-A12004-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

JOEL MERCED-CASTELLA

                            Appellant                 No. 1071 WDA 2016


          Appeal from the Judgment of Sentence Dated May 3, 2016
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0008639-2015

BEFORE: OLSON, J., SOLANO, J., and RANSOM, J.

MEMORANDUM BY SOLANO, J.:                          FILED OCTOBER 13, 2017

       Appellant, Joel      Merced-Castella, appeals from the     judgment    of

sentence imposed after a jury convicted him of involuntary deviate sexual

intercourse (“IDSI”), unlawful contact with a minor, indecent assault of a

person less than 13, corruption of minors, endangering the welfare of a

child, and indecent assault of a person less than 16.1        Upon review, we

affirm.

       The trial court recounted the procedural history of this case as follows:

             [Appellant] was charged with [numerous sex-related
       offenses] in relation to a series of events which occurred
       between [Appellant] and his stepdaughter. Following a jury trial
       held before this Court on January 13 and 14, 2016, [Appellant]
       was found guilty of all charges. He appeared before this Court
       on April 5, 2016 and was sentenced to consecutive terms of
____________________________________________
1
 18 Pa.C.S. §§ 3123(b), 6318(a)(1), 3126(a)(7), 6301(a)(1)(ii), 4304(a)(1),
and 3126(a)(8), respectively.
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      imprisonment of 10-20 years each at the IDSI with a Child and
      Unlawful Contact with a Minor charges and three and one half
      (3½) to seven (7) years at the Corruption of Minors charge, for
      an aggregate 23½ to 47 years. Additionally, following a hearing
      on May 3, 2016, [Appellant] was found to be a Sexually Violent
      Predator. Timely post-sentence motions were filed and were
      denied on June 22, 2016. This appeal followed.

Trial Court Opinion, 11/30/16, at 1-2 (footnotes omitted).

      Appellant presents two issues for review:

   1. Is the imposition of the aggregate sentence of 23½ to 47 years
      in this case manifestly excessive, unreasonable, and an abuse of
      the sentencing court’s discretion? Specifically, on two of the
      three charges for which [Appellant] was sentenced he received
      the maximum allowable sentence, and each were ordered to run
      consecutively. Did this result in a manifestly excessive sentence
      that is wholly unreasonable and not in conformity with the goal
      of individualized sentencing, or the Sentencing Code (42 Pa.C.S.
      § 9721(b)), instead evincing the goal of imposing the maximum
      sentence, and an undue emphasis on retribution, not
      rehabilitation?

   2. Is the guilty verdict contrary to the weight of the evidence
      presented in that the 14 year old complainant testified that she
      had been locked in her room for 24 hours a day, that she was
      not permitted to speak to her brother or play games, and that
      she was punished by being forced to stare at a wall for hours,
      exercise excessively, and have no access to food? Moreover, as
      the detective work in this case was virtually non-existent,
      including a failure to verify the times when the complainant
      alleged she was alone with Appellant, ignoring the fact that the
      search for corroborating evidence in the computers in the home
      did not support the complainant’s story, and a misinterpretation
      of the short discussion had with mother, should the guilty
      verdicts have shocked the conscience of the court?

Appellant’s Brief at 9.




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                             Weight of the Evidence

      We begin with Appellant’s second issue, in which he assails the weight

of the evidence. In considering this claim, we note that the finder of fact is

the exclusive judge of the weight of the evidence, and is free to believe all,

part, or none of the evidence presented, and to determine the credibility of

the witnesses.      See Commonwealth v. Champney, 832 A.2d 403, 408

(Pa. 2003). As an appellate court, we cannot substitute our judgment for

that of the finder of fact. Id. Therefore, we will reverse a jury’s verdict and

grant a new trial only where the verdict is so contrary to the evidence as to

shock one’s sense of justice. See Commonwealth v. Passmore, 857 A.2d

697, 708 (Pa. Super. 2004). “A weight of the evidence claim concedes that

the evidence is sufficient to sustain the verdict.”            Commonwealth. v.

Lyons, 79 A.3d 1053, 1067 (Pa. 2013) (quoting Commonwealth v.

Widmer, 744 A.2d 745, 751–52 (Pa. 2000)).

      In support of his weight claim, Appellant argues that the evidence

“consisted primarily of [the victim’s] testimony . . . which is full of

inconsistencies and other incongruities . . . [making] the guilty verdict

manifestly unreasonable.”       Appellant’s Brief at 40.       Appellant specifically

contends that the victim’s “claims are fabricated.” Id. at 40, 49. However,

as noted by the Commonwealth, the uncorroborated testimony of a sexual

assault   victim,    if   believed,   is   sufficient   to   support   a   conviction.




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Commonwealth Brief at 20, citing Commonwealth v. Bishop, 742 A.2d

178, 189 (Pa. Super. 1999). The trial court explained:

      After reviewing the record and the evidence . . . it cannot be
      said under any analysis that the testimony presented at trial was
      “so unreliable and/or contradictory as to make any verdict based
      thereon pure conjecture.” See Bowen, [55 A.3d 1254, 1262
      (Pa. Super. 2012)]. A review of the evidence as a whole clearly
      demonstrates [Appellant’s] perpetration of the crimes. [The
      victim’s] testimony was credible and the jury obviously credited
      it.   [Appellant’s] argument – that [the victim’s] admitted
      displeasure with the household rules necessarily means that she
      fabricated the allegations to get [Appellant] out of the house –
      fails without question. Additional trial testimony revealed that
      [the victim’s] mother supported [Appellant] and it was [the
      victim] who was removed from the home and placed in foster
      care. Given the evidence presented at trial and discussed above,
      there is no question that the verdict was appropriate and not
      “shocking” to the conscience.

Trial Ct. Op., 11/30/16, at 4-5.

      Upon review, we discern no abuse of discretion by the trial court in

rejecting Appellant’s weight claim.

                                   Sentencing

      In his remaining issue, Appellant challenges a discretionary aspect of

his sentence, its length.     “It is well-settled that, with regard to the

discretionary aspects of sentencing, there is no automatic right to appeal.”

Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014)

(citation omitted), appeal denied, 95 A.3d 275 (Pa. 2014). Rather, where

an appellant challenges the discretionary aspects of a sentence, the appeal

is treated as a petition for allowance of appeal, as to which our review is

discretionary.   Commonwealth v. Haynes, 125 A.3d 800, 806-07 (Pa.

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Super. 2015), appeal denied, 140 A.3d 12 (Pa. 2016).          We will exercise

our discretion to consider such a petition only if (1) the appellant has filed a

timely notice of appeal; (2) he has preserved the sentencing issue at the

time of sentencing or in a motion to reconsider and modify his sentence; (3)

he presents the issue in a properly framed statement in his brief under Rule

2119(f) of the Rules of Appellate Procedure pursuant to Commonwealth v.

Tuladziecki, 522 A.2d 17 (Pa. 1987); and (4) in the words of Section

9781(b), “it appears that there is a substantial question that the sentence

imposed is not appropriate under this chapter.” See Haynes, 125 A.3d at

807; Commonwealth v. Zelinski, 573 A.2d 569, 574-75 (Pa. Super.

1990), appeal denied, 593 A.2d 419 (Pa. 1990).

      Instantly, Appellant filed a timely notice of appeal, preserved his claim

that his sentence was excessive in both his preliminary and amended post-

sentence motions, and included a proper Rule 2119(f) statement in his

appellate brief.   See Appellant’s Notice of Appeal, 7/22/16; Preliminary

Post–Sentence Motion, 4/14/16; Amended Post-Sentence Motion, 6/1/16;

and Brief at 15-21. Consequently, we will determine whether Appellant has

presented a substantial question that his sentence is inappropriate under the

Sentencing Code.

      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). In determining whether a substantial question


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exists, this Court does not examine the merits of the claim of excessiveness;

rather, we look to whether the appellant has presented a plausible argument

that the sentence, although within the permissible ranges set forth in the

Sentencing Guidelines, 204 Pa. Code § 303 et seq., is clearly unreasonable.

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013) (citation

omitted), appeal denied, 91 A.3d 161 (Pa. 2014). An appellant presents a

substantial question when he sets forth a plausible argument that the

sentence violates a provision of the Sentencing Code or is contrary to the

fundamental norms of the sentencing process. Id. at 1268. The Sentencing

Code prescribes individualized sentencing by requiring the sentencing court

to consider the protection of the public, the gravity of the offense in relation

to its impact on the victim and the community, and the rehabilitative needs

of the defendant, Commonwealth v. Swope, 123 A.3d 333, 338 (Pa.

Super. 2015) (citing 42 Pa.C.S. § 9721, and prohibiting a sentence without

consideration of “the nature and circumstances of the crime[,] and the

history, character, and condition of the defendant,” 42 Pa.C.S. § 9725).

      Appellant argues that his sentence is unreasonable because “it keeps

him under supervision until he is 81 years old.”       Appellant’s Brief at 13.

Appellant further asserts that the trial court failed to consider his need for

rehabilitation and imposed a sentence of “retribution against [A]ppellant

because of the nature of the charges and the fact that [he] refused to enter

a guilty plea.” Id. Appellant states that the trial court “came to the bench


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with the fixed purpose of imposing the longest sentence possible on

[Appellant,]” noting that “two of his three sentences” are the maximum

sentences permitted under the Sentencing Code.       Id. at 36.   Appellant’s

argument raises a substantial question. See Commonwealth v. Luketic,

162 A.3d 1149, 1162 (Pa. Super. 2017) (a substantial question was raised

where appellant argued that the court failed to impose an individualized

sentence and determined his sentence prior to the sentencing hearing,

thereby violating the fundamental norm that his sentence be individualized).

     In reviewing the merits of sentencing issue, we recognize our standard

of review:

     “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.” Commonwealth v.
     Bricker, 41 A.3d 872, 875 (Pa. Super. 2012) (citation omitted).
     “In order to establish that the sentencing court abused its
     discretion, [the defendant] 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.”
     Williams, 69 A.3d [735,] 741 (Pa. Super. 2013) (quotation
     marks and citation omitted). “The rationale behind such broad
     discretion and the concomitantly deferential standard of
     appellate review is that the sentencing court is in the best
     position to determine the proper penalty for a particular offense
     based upon an evaluation of the individual circumstances before
     it.” Id. at 740 (quotation marks and citation omitted). To
     determine whether the trial court made the proper
     considerations during sentencing, “an appellate court must, of
     necessity, review all of the judge’s comments.” Commonwealth
     v. Bethea, 474 Pa. 571, 379 A.2d 102, 106 (1977); see also
     Commonwealth v. Ritchey, 779 A.2d 1183, 1187 (Pa. Super.
     2001) (“As this Court has stated, the judge’s statement must
     clearly show that he has given individualized consideration to the


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      character of the defendant” (quotation marks and citation
      omitted)).

Luketic, 162 A.3d at 1162-1163.

      Citing Commonwealth v. Coulverson, 34 A.3d 135 (Pa. Super.

2011), Appellant first argues that the court’s “intense focus on the crime’s

impact on the victim to the exclusion of all other factors was error.”

Appellant’s Brief at 29. We disagree with Appellant’s premise that the trial

court failed to consider all appropriate factors.

      This Court in Coulverson vacated a sentence where “the record

reveals scant consideration of anything other than victim impact and the

court’s impulse for retribution on the victims’ behalf.”   34 A.3d at 148.

However, it also recognized “that individualized sentencing remains the

controlling norm of the sentencing process and that a sentence befitting one

defendant may not befit another.” Id. at 147.

      Here, the court said that it “read and considered” Appellant’s

presentence report. N.T., 4/5/16, at 2. Our established case law, as stated

by the Supreme Court, provides:

      A pre-sentence report constitutes the record and speaks for
      itself. . . . we state clearly that sentencers are under no
      compulsion to employ checklists or any extended or systematic
      definitions of their punishment procedure. Having been fully
      informed by the pre-sentence report, the sentencing court’s
      discretion should not be disturbed.

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988); see also

Commonwealth v. Rhoades, 8 A.3d 912, 919 (Pa. Super. 2010) (where



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the court had the benefit of a pre-sentence investigation report, we can

assume it was aware of relevant information regarding the defendant’s

character and weighed those considerations along with mitigating statutory

factors), appeal denied, 25 A.3d 328 (Pa. 2011); Commonwealth v.

Downing, 990 A.2d 788, 794 (Pa. Super. 2010) (where a court is informed

by a pre-sentence report, it is presumed that the court is aware of all

appropriate sentencing factors and considerations, and where the court has

been so informed, its discretion should not be disturbed).

      In addition, the court heard from five individuals who testified on

Appellant’s behalf: the mother of Appellant’s daughter, Appellant’s brother,

Appellant’s daughter, Appellant’s wife, and Appellant. The court also heard

from the victim before rendering Appellant’s sentence.         The court then

stated:

      [Appellant,] your victim was a young lady approximately 13 at
      least during some of these abuses. I don’t think it makes much
      of a difference to me that it was only two years and not five
      years. I think the victim is probably telling the truth [that it was
      five years].

            She was your step-daughter. You violated a position of
      trust. You heard her impact statement. You have not only
      sexually assaulted her. You have torn her away from her family
      so that she is in now foster care. And significantly, you have
      a prior arrest and conviction for sexual assault.

           Your criminal record started in the year 2000 and
      involved some guns as well as sexual assault. I find that
      you are certainly a danger to the community. You are not
      amenable to county supervision.




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N.T., 4/5/16, at 13-14 (emphasis added).          Although brief, the above

commentary indicates that the court did in fact consider Appellant’s

character, his amenability to rehabilitation and the protection of the public –

as well as the gravity of the offense in relation to its impact on the victim.

“A sentencing court need not undertake a lengthy discourse for its reasons

for imposing a sentence or specifically reference the statute in question, but

the record as a whole must reflect the sentencing court’s consideration of

the facts of the crime and character of the offender.” Commonwealth v.

Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010), appeal denied, 13 A.3d

475 (Pa. 2010). The record demonstrates that the trial court considered the

appropriate factors here.

      Appellant’s next contention is that the court improperly considered his

rejection of a plea offer in imposing Appellant’s sentence.     The record at

sentencing reveals the following exchange immediately preceding the

excerpt quoted above:

      [THE COMMONWEALTH]: Your Honor, we would ask that you
      apply the mandatory in this case because of the prior conviction
      and the conviction in the current case before you.

      THE COURT:      Okay.      And I just need to do a few
      housekeeping things.    We are going to have a hearing to
      determine whether or not the defendant is a sexually violent
      predator sometime I think in May.

      [THE COMMONWEALTH]:           May 3 I believe is the date we have
      picked, Your Honor.

      THE COURT:    And this is not a case that is eligible for RRRI.
      There was an offer prior to trial of not less than ten nor

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      more than 20 years with a waiver of the 25-year
      mandatory, which the defendant declined. That’s on the
      record, but I don’t know what date that was.

           So, [Appellant], your         victim   was    a   young    lady
      approximately 13 at least . . .

N.T., 4/5/16, at 13 (emphasis added).

      The above exchange, in which the trial court references Appellant’s

foregone plea offer, does not demonstrate that Appellant’s rejection of the

offer was a factor considered by the court. Appellant cites Commonwealth

v. Bethea, 379 A.2d 102, 104 (Pa. 1977), for the proposition that a

defendant “cannot be punished by a more severe sentence because he

unsuccessfully exercised his constitutional right to stand trial rather than

plead guilty.” In response, the Commonwealth states that the “language of

the Bethea decision is very broad” and “commends to the Court the

question of whether the judge’s remarks here are sufficient to indicate

‘reliance,’ in whole or in part, on [A]ppellant’s rejection of the plea offer[.]”

Commonwealth Brief at 18.

      In Bethea, the sentencing court stated its consideration of the

defendant’s decision to forego a plea, saying to the defendant:

      If you had pled guilty, perhaps you were involved, there is no
      question in my mind, but had you pled guilty it might have
      shown me the right side of your attitude about this, but you pled
      not guilty, fought it all the way, and the jury found you guilty,
      and I'm going to sentence you at this time.

379 A.2d at 105-06. Conversely, in the case before us, the sentencing court

merely referenced the plea as one of “a few housekeeping things,” along

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with setting the date for Appellant’s SVP hearing, prior to imposing

Appellant’s sentence.

     Appellant asserts that the court’s comment was “tantamount to

imposing a penalty for the exercise of a right to a jury trial.”   Appellant’s

Brief at 34. We disagree. In vacating the sentence at issue in Bethea, the

Supreme Court explained:

     [T]he correct inquiry in a case such as this is not whether the
     trial court considered legitimate factors in fixing sentence, but
     whether it considered only such factors. This is so because any
     increase in sentence which results from a defendant’s decision to
     put the state to its proof puts a price upon the exercise of a
     fundamental constitutional right, and hence is unjustified. Thus,
     a sentence based in part on an impermissible consideration is
     not made proper simply because the sentencing judge considers
     other permissible factors as well.

           In deciding whether a trial judge considered only
     permissible factors in sentencing a defendant, an appellate court
     must, of necessity, review all of the judge’s comments.
     Moreover, in making this determination it is not necessary that
     an appellate court be convinced that the trial judge in fact relied
     upon an erroneous consideration; it is sufficient to render a
     sentence invalid if it reasonably appears from the record
     that the trial court relied in whole or in part upon such a
     factor.

            Applying the above principles to the case at bar, we are
     persuaded that appellant’s sentences must be vacated. A fair
     reading of the trial court’s remarks prior to the imposition of
     sentence . . . indicates that the judge may have been influenced
     by the fact that appellant chose to stand trial rather than plead
     guilty, with a possible resultant augmentation of the sentences
     imposed.

Bethea, 379 A.2d at 106–107 (emphasis added).           Consistent with the

foregoing, “a fair reading” of the court’s remarks in this case does not



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indicate that the court “may have been influenced by the fact” that Appellant

rejected a plea offer.    Nor does it “reasonably appear” that the trial court

relied on Appellant’s rejection of a plea as a factor in imposing Appellant’s

sentence.   Accordingly, we are not persuaded that Appellant is entitled to

relief under Bethea, and therefore affirm Appellant’s judgment of sentence.

     Judgment of sentence affirmed.

     Judge Ransom joins the memorandum.

     Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/13/2017




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