J-S50041-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    DAVID HUERTAS                              :
                                               :
                      Appellant                :   No. 1915 EDA 2016

             Appeal from the Judgment of Sentence April 29, 2016
                In the Court of Common Pleas of Lehigh County
             Criminal Division at No(s): CP-39-CR-0001251-2015


BEFORE: PANELLA, MOULTON, and RANSOM, JJ.

MEMORANDUM BY RANSOM, J.:                           FILED SEPTEMBER 19, 2017

       Appellant, David Huertas, appeals from the judgment of sentence of

sixty to one hundred forty years of incarceration, imposed April 29, 2016,

following a jury trial resulting in his conviction for Rape of a Child, two

counts of Involuntary Deviate Sexual Intercourse with a Person Less than 16

Years of Age, Involuntary Deviate Sexual Intercourse with a Child,

Aggravated Indecent Assault with Complainant Less than 16 Years of Age,

two counts of Corruption of Minors with Defendant Age 18 or Above, and

Indecent Assault of a Person Less than 16 Years of Age.1 We affirm.

       The trial court summarized the facts of the case as follows:



____________________________________________


1
 18 Pa.C.S.A. §§ 3121(c), 3123(a)(7), 3123(b), 3125(a)(8), 6301(a)(1)(ii),
3126(a)(8), respectively.
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     In the instant case, the testimony at trial revealed that L.M. is a
     15 year old girl, with a date of birth of May [], 2000.
     Additionally, N.D. is a 13 year old girl, with a date of birth of
     September [], 2002. [Appellant], David Huertas, is L.M.’s and
     N.D.’s stepfather. [Appellant] was the only father who[m] L.M.
     and N.D. knew, as he had been in their lives since they were
     very young.

     Starting in the summer of 2011, when L.M. was approximately
     eleven (11) years old, [Appellant] called her into his bedroom
     and touched her “in ways that she did not like.” At that time,
     L.M. was living at 714 Washington Street, Allentown, Lehigh
     County, Pennsylvania.     She was living with [Appellant], his
     mother (Frances), her mother, her two (2) sisters (N.D. and
     J.M.), and her brother (D.H.). L.M.’s uncle and his family lived
     with them for a period of time at this residence as well. Indeed,
     at one time, there were fourteen (14) people living in the
     residence.

     During the time that L.M. lived at the residence on Washington
     Street, [Appellant] frequently would touch her breasts under and
     over her clothes. He also would frequently touch her vagina,
     both over and under her clothes. By “touch”, L.M. explained that
     [Appellant] would use his hand and his penis to glide over and
     penetrate the inside of her vagina. This “touching” would occur
     when [Appellant] was alone with L.M. in his bedroom, and
     happened multiple times. [Appellant] instructed L.M. to do
     certain things, such as touch his penis. L.M. testified that
     [Appellant’s] penis was big and hard to the touch. In addition,
     L.M. explained that she also “touched” [Appellant’s] penis with
     her mouth. This occurred nearly every time. Even though L.M.
     did not want to do such actions, she was afraid to say “no” to
     her stepfather. She feared that [Appellant] would get mad and
     exhibit an attitude and take his anger out on everyone around
     him. L.M. did not report this “touching” to anyone, because she
     did not think that anyone would believe her.

     There were times when L.M.’s sister, N.D., was also present.
     L.M. witnessed N.D. “touching” [Appellant’s] penis as to
     [Appellant] instructed her to so do. On November 1, 2013, L.M.,
     N.D. and their family moved to a residence located at 1739
     Hanover Avenue, Allentown, Lehigh County, Pennsylvania. As on
     Washington Street, L.M. and N.D. were living with [Appellant],
     their mother, their younger sister, and their brother.
     [Appellant’s] mother lived with them on Hanover Avenue as well.

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       The “touching” continued to occur at the Hanover residence.
       [Appellant] would frequently call L.M. and/or N.D. into his
       bedroom, and make L.M. and/or N.D. touch his penis. He would
       make them take off their clothes and he would touch L.M.’s
       breast and butt. [Appellant] would glide over and penetrate
       L.M.’s vagina with his penis. He would also rub his penis against
       the outside of N.D.’s vagina. After he was “satisfied” and
       ejaculated, he would wipe off the ejaculation.2

       At times, when L.M. was 13 or 14 years old, and N.D. was 11 or
       12 years old, [Appellant] had N.D. hold his penis with her hand
       while L.M. put her mouth on [Appellant’s] penis. [Appellant]
       also had N.D. put her mouth on his penis while L.M. held his
       penis.

       N.D. was also “touched” by [Appellant] when L.M. was not
       present. N.D. specifically recounted that when she was 11 years
       old, [Appellant] “touched” her and had her put his penis in her
       mouth. [Appellant] had instructed her to take off her clothes
       and he had pulled his pants down, but not all the way off.
       [Appellant] touched her in her private parts using his hands and
       his penis. Although he never penetrated her vagina, he would
       rub his penis against her. N.D. testified that she did not want to
       do such acts, but that [Appellant] offered her money to do them.

       In November of 2014, N.D. confided in her best friend at school
       about the “touching” that was going on with [Appellant]. She
       mentioned it again to this friend in January of 2015. Thereafter,
       on February 4, 2015, at approximately 7:39 A.M., L.M. sent her
       aunt, Eraka Rivera Cruz, a text message, implying that someone
       was “touching” her. When L.M. actually spoke with her aunt on
       the telephone, she told her that [Appellant] had been touching
       her. The aunt advised her to inform her mother of same. L.M.
       took her aunt’s advice and told her mother. That day, both
       [Appellant] and the mother picked L.M. up from school.
       [Appellant] took L.M.’s cell phone when she entered the vehicle.
____________________________________________


2
  According to L.M., [Appellant] had surgery on his penis in 2014, L.M.
indicated that after the surgery, [Appellant’s] penis was smaller and no
longer had the “skin” on it. Additionally, it was no longer hard. Even though
after the surgery [Appellant] was impotent and could not become erect, he
continued to glide his penis over the girls’ vaginas, but was no longer able to
penetrate L.M.



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J-S50041-17


      Her mother yelled at her when they returned home. When N.D.
      supported her sister’s account of what had been transpiring, her
      mother yelled at her and slapped her. The next day, L.M.
      borrowed a telephone from her friend at school and called her
      aunt again. Her aunt notified the police of what L.M. had
      confided in her, and subsequent medical examinations were
      performed on L.M. and N.D.

Trial Court Opinion, 7/20/16 at 4-7 (citations and some footnotes omitted).

      In December 2015, a jury trial commenced, after which Appellant was

found guilty of the aforementioned crimes.     He was sentenced as outlined

above. Appellant timely filed a post sentence motion, which was denied by

the trial court in June 2016.   Appellant timely appealed and filed a court-

ordered statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b). The trial court issued a responsive statement.

      Appellant raises the following issues for review:

      A. Whether or not the evidence as presented was sufficient as a
         matter of law to support the conviction for Rape of a Child,
         two counts of Involuntary Deviate Sexual Intercourse with a
         Person Less than 16 Years of Age, Aggravated Indecent
         Assault, two counts of Corruption of Minors, and Indecent
         Assault of the Person Less than 16 Years of Age when the
         evidence that [Appellant] was the perpetrator or could of
         done the acts alleged was questionable and uncertain?

      B. Was the verdict against the weight of all the evidence in
         regards to the proof of whether or not [Appellant] was guilty
         of the charges?

      C. Did the lower court err in denying [Appellant’s] request to
         recall one of the victims to cross-examine her on alleged prior
         inconsistent statements?

Appellant’s Brief at 9-10.




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      Appellant purports to challenge the sufficiency of the evidence

presented at trial. “In order to develop a claim challenging the sufficiency of

the evidence properly, an appellant must specifically discuss the elements of

the crime and identify those which he alleges the Commonwealth failed to

prove.”     Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super.

2014) (citing Commonwealth v. McDonald, 17 A.3d 1282, 1286 (Pa.

Super. 2011)).

      While Appellant’s brief lists the five crimes he was convicted of, he

offers no analysis of any particular elements that compromise the charges

against him.     See Appellant’s Br. at 14, 17-18.          Appellant’s blanket

assertions that (1) the statements of the two victims were contradictory and

(2) there was no physical evidence in support thereof are insufficient. We

note that “such specificity is of particular importance in cases where, as

here, the appellant was convicted of multiple crimes each of which contains

numerous     elements    that   the   Commonwealth   must    prove   beyond   a

reasonable doubt.”      Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.

Super. 2009).     Accordingly, Appellant has waived this claim for lack of

development. Samuel, 102 A.3d at 1005; Pa.R.A.P. 2119(a).

      Next, Appellant contends that the verdict is against the weight of the

evidence.    See Appellant’s Br. at 18. Appellant suggests that his physical

limitations rendered him unable to commit the crimes.          See id. at 19.

Appellant also contends that the abuse could not have happened due to the




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number of people residing in the household.          Id.   Appellant essentially

challenges the credibility of the victims. Id.

      The following principles apply to our review of a weight of the evidence

claim:

         The weight of the evidence is exclusively for the finder of
         fact who is free to believe all, part, or none of the evidence
         and to determine the credibility of the witnesses. An
         appellate court cannot substitute its judgment for that of
         the finder of fact. Thus, we may only reverse the . . .
         verdict if it is so contrary to the evidence as to shock one’s
         sense of justice.


      Commonwealth v. Small, 741 A.2d 666, 672-73 (Pa. 1999).
      Moreover, where the trial court has ruled on the weight claim
      below, an appellate court’s role is not to consider the underlying
      question of whether the verdict is against the weight of the
      evidence. Rather, appellate review is limited to whether the trial
      court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003), cert.

denied, 542 U.S. 939, (2004) (most internal citations omitted).            A trial

court's denial of a post-sentence motion based on a weight of the evidence

claim is the least assailable of its rulings. Commonwealth v. Nypaver, 69

A.3d 708, 717 (Pa. Super. 2013) (internal quotations omitted) (citing

Commonwealth v. Sanders, 42 A.3d 325, 331 (Pa. Super. 2012).

      Furthermore,

      “[w]hen the challenge to the weight of the evidence is predicated
      on the credibility of trial testimony, our review of the trial court's
      decision is extremely limited. Generally, unless the evidence is
      so unreliable and/or contradictory as to make any verdict based
      thereon pure conjecture, these types of claims are not
      cognizable on appellate review.”


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Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa. Super. 2007)

(quoting Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (Pa. Super.

2004) (citation omitted)); see also Commonwealth v. Hankerson, 118

A.3d 415, 420 (Pa. Super. 2015) (noting that this Court may not re-assess

the credibility of a witness’ testimony when ruling on a weight of the

evidence claim).

      Here, the fact finder was free to believe L.M. and N.D.’s testimony.

After a review of the testimony, we find that the testimony was not so

unreliable as to warrant a new trial.     As such, we conclude that the trial

court did not abuse its discretion in finding the verdict was supported by the

weight of the evidence. Champney, 832 A.2d at 408.

      Appellant’s final claim asserts that the lower court erred in denying his

request to recall N.D. to cross-examine her on prior inconsistent statements.

Questions concerning the admissibility of evidence are within the discretion

of the trial court and will only be reversed upon a showing that the court

abused its discretion.   Commonwealth v. Johnson, 42 A.3d 1017, 1027

(Pa. 2012). “An abuse of discretion may not be found merely because an

appellate court might have reached a different conclusion, but requires a

result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will,

or such lack of support so as to be clearly erroneous.”            Id. (quoting

Commonwealth v. Sherwood, 982 A.2d 483, 495 (Pa. 2009)).

      The trial court reasoned as follows:

                                      -7-
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     [Appellant] contends that this [c]ourt erred in precluding N.D.
     from being called back to the stand to testify on the defense side
     of the case. Specifically, [Appellant] intended to recall N.D. to
     impeach her credibility through the inconsistencies between her
     trial testimony and her prior out-of-court forensic interview
     statements. [Appellant’s] argument is legally flawed.

     Initially this [c]ourt notes that Pennsylvania Rule of Evidence
     613(a) provides in pertinent part:

     Rule 613. Witness’s Prior Inconsistent Statement to Impeach

       (a)    Witness’s Prior Inconsistent Statement to Impeach

              A witness may be examined concerning a prior
              inconsistent statement made by the witness to
              impeach the witness’ credibility.

     Pa. R.E. 613(a). Therefore, in compliance with the law, this
     [c]ourt indicated that it would allow N.D. to retake the witness
     stand if, in fact, her statements were inconsistent.
     Consequently, this [c]ourt requested that defense counsel set
     forth on the record the alleged inconsistencies in her testimony.
     Defense counsel represented to this [c]ourt that N.D. had stated
     three (3) times during the audio recorded statement that she
     provided to the forensic interviewer that [Appellant] had just
     “laid his hands on her.” There was no mention of oral sex. In
     contrast, at trial N.D. had testified that she performed oral sex
     on [Appellant].

     While at first blush these statements appear to be inconsistent,
     upon further exploration by this [c]ourt, it was revealed that
     these three (3) statements were taken out of context. These
     three (3) statements were made at the beginning of the
     audiotaped interview, but N.D. ultimately stated near the end of
     her audio recorded interview that oral sex did occur. Both the
     attorney for the Commonwealth and defense counsel
     acknowledged that at the end of the audio recording, N.D. did
     mention the occurrence of oral sex. Therefore, this [c]ourt
     concluded that N.D.’s audio recorded statement had to be taken
     as a whole for it not to be misleading or misrepresenting. Thus,
     in light of N.D.’s complete audio recorded forensic interview
     statement, this [c]ourt found there was no inconsistency that
     [Appellant] could use to impeach her testimony. Accordingly,
     this [c]ourt properly and legally precluded [Appellant] from
     recalling N.D. for the purpose of impeaching her credibility.

                                   -8-
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Trial Court Opinion at 9-11.

      In review of the record, we discern no abuse of discretion in the trial

court’s ruling. See Johnson, 42 A.3d at 1027.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/2017




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