J. S23044/20


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :      IN THE SUPERIOR COURT OF
                                          :            PENNSYLVANIA
                   v.                     :
                                          :
RAMON JAQUEZ MARTINEZ,                    :          No. 1396 EDA 2019
                                          :
                        Appellant         :


      Appeal from the Judgment of Sentence Entered March 22, 2016,
           in the Court of Common Pleas of Philadelphia County
             Criminal Division at No. CP-51-CR-0001947-2015


BEFORE: NICHOLS, J., McCAFFERY, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED JUNE 24, 2020

      Ramon Jaquez Martinez appeals from the March 22, 2016 judgment of

sentence entered in the Court of Common Pleas of Philadelphia County after

his conviction in a waiver trial of rape of a child, sexual assault, corruption of

minors, indecent assault person less than 13 years of age, indecent exposure,

and simple assault.1 The trial court imposed an aggregate sentence of 7½ to

15 years of incarceration followed by 5 years of probation. We affirm.

      The trial court set forth the following:

            Appellant raped his girlfriend’s daughter [the “victim”]
            on numerous occasions beginning when she was
            approximately 6 or 7 years old until the time her
            mother [“Mother”] found [a]ppellant in [the victim’s]
            bed when she was 9 years old in 2014.


1 18 Pa.C.S.A. §§ 3121(c), 3124.1, 6301, 3126(a)(7), 3127(a), and 2701(a),
respectively.
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          [The victim] lived with her [Mother], [a]ppellant, who
          was [M]other’s boyfriend, and [a]ppellant’s brother,
          Alenjandro [sic] Martinez, along with several children
          of [Mother’s]. Beginning when [the victim] was in the
          2nd grade, [a]ppellant began engaging in sexual
          relations with the child. These incidents would happen
          in both the kitchen and in her bedroom, as well as in
          [M]other’s bedroom. She described [appellant] taking
          off her pants and placing his exposed penis in her
          vagina. He told her not to tell anyone what he did.
          One day, he was sitting on her bed, and [M]other
          walked into the room. Appellant left the room. Over
          the next few days, [the victim’s] [M]other asked her
          multiple times if [a]ppellant had touched her. [The
          victim] at first did not tell [Mother] what had been
          happening to her.        However, after 2 days and
          [Mother’s] asking her multiple times, [the victim] told
          her [M]other that [a]ppellant had, in fact, been
          “touching” her.

          [Mother] took [the victim] to St. Christopher’s
          Hospital for Children the same day [the victim] told
          her about what [a]ppellant had been doing to her.
          Prior to going to the hospital, [Mother] told [the
          victim] to tell the hospital staff what happened, but
          she told her not to tell anyone who did it. [Mother]
          told [the victim] to say she didn’t know who it was
          who had been raping her. After medical personnel
          examined [the victim, M]other spoke to the police and
          subsequently took [the victim] to have a forensic
          interview at the Philadelphia Children’s Alliance (PCA).
          Again, [Mother] told [the victim] to tell the interviewer
          that she did not know who raped her.[Footnote 1] A
          short time later, [the victim] went to live with her
          father [(“Father”)]. It was then that she told [F]ather
          all that had been happening to her in the home with
          [M]other,        [a]ppellant       and          Alejandro
          Martinez.[Footnote 2] [Father] took [the victim] back
          to PCA where another forensic interview was
          conducted. [The victim] told the interviewer that
          name of [a]ppellant and his brother who had been
          assaulting her and told them that [Mother] told her to
          lie. Police arrested [a]ppellant for Rape and related
          offenses.


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                    [Footnote 1] [Mother] was arrested . . .
                    for Intimidation of a Witness, Endangering
                    Welfare of a Child and Hindering
                    Apprehension.      She was convicted of
                    Endangering Welfare of a Child and
                    Hindering Apprehension.

                    [Footnote 2] Alejandro Jaquez Martinez
                    was arrested . . . for Rape and related
                    offenses. He was found not guilty.

Trial court opinion, 9/30/19 at 2-4 (record citations omitted).

        Following imposition of sentence, appellant did not file post-sentence

motions or a direct appeal. Rather, on December 1, 2016, appellant filed a

pro se PCRA2 petition.       Appointed counsel then filed an amended PCRA

petition that raised trial counsel’s ineffectiveness for failure to file a direct

appeal. The Commonwealth did not oppose the grant of PCRA relief. The trial

court then reinstated appellant’s direct appeal rights nunc pro tunc.

Appellant filed a timely notice of appeal. The trial court ordered appellant to

file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b). Appellant timely complied. The trial court then filed its

Rule 1925(a) opinion.

        Appellant raises the following issue for our review:

              Was the evidence insufficient to sustain the guilty
              verdicts for rape and sexual assault as [a]ppellant
              asserts there was insufficient evidence of any
              penetration, however slight[?]




2   Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546.


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Appellant’s brief at 7.

        In his brief, appellant “acknowledges that the uncorroborated testimony

of a complainant may be sufficient, [but] here, the evidence was much too

insufficient and lacking to sustain guilty verdicts because of the numerous

issues with the [victim’s] testimony.” (Appellant’s brief at 13.) Appellant then

points out that “other children and at least one other adult were present” in

the home, “none of whom noticed anything.” (Id. at 14.) Appellant goes on

to attack the victim’s credibility by highlighting an inconsistency between her

testimony and her PCA interview and informing this court that no forensic

evidence corroborated her testimony. Appellant contends that the victim “was

at best greatly confused and mistaken as to being assaulted by [a]ppellant.”

(Id.)    Appellant calls this court’s attention to his cooperation with police

wherein he explained in his police statement “that perhaps there was

inadvertent contact while the child slept,” but “there was no penetration.” (Id.

at 15.) In so doing, appellant challenges the weight of the evidence, not its

sufficiency. See, e.g., Commonwealth v. Wilson, 825 A.2d 710, 713-714

(Pa.Super. 2003) (reiterating that a review of the sufficiency of the evidence

does not include a credibility assessment; such a claim goes to the weight of

the evidence); Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super.

1997) (restating that the fact-finder makes credibility determinations, and

challenges to those determinations go to the weight of the evidence, not the

sufficiency of the evidence).



                                      -4-
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      Appellant failed to raise a weight claim with the trial court in a motion

for a new trial “(1) orally, on the record, at any time before sentencing; (2) by

written motion at any time before sentencing; or (3) in a post-sentence

motion” as required by Pa.R.Crim.P. 607(A). Therefore, we have nothing to

review.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/24/2020




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