J-S39012-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

JULIO ESQUILIN,

                         Appellant                    No. 542 EDA 2014


          Appeal from the Judgment of Sentence February 7, 2014
           In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0005768-2012
                          CP-51-CR-0005783-2012



BEFORE: BOWES, OTT AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                           FILED AUGUST 11, 2015

      Julio Esquilin appeals from the aggregate judgment of sentence of fifty

to 100 years incarceration imposed after a jury found him guilty of two

counts each of aggravated assault, unlawful contact with a minor, and one

count each of rape of a child with serious bodily injury, rape of a child,

involuntary deviate sexual intercourse (“IDSI”) of a child under the age of

thirteen, IDSI of a child under the age of thirteen—with serious bodily injury,

and endangering the welfare of a child (“EWOC”). We affirm.

      The trial court recounted the heinous salient facts as follows.

             In September, 2011, the defendant Julio Esquilin was
      living with his girlfriend, Yaritza Vallejo, at 4108 N. 8th street.
      Yaritza Vallejo is the mother of the first victim, three year old
      [K.J.].
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           On September 23, 2011, after the defendant had been
     babysitting the victim, Ms. Vallejo returned home to find her
     victim daughter vomiting blood. While the victim was being
     taken to St. Christopher's Hospital, the defendant ordered the
     mother to lie to the doctors. The defendant threatened that she
     would "suffer the consequences" if she did not say that [K.J.] fell
     over a plastic toy kitchen. Barely alive, the three year old victim
     was placed on life-support and intubated once she reached the
     hospital. Her injuries consisted of, among other things,
     laceration to her liver, spleen, and vagina. All of these injuries
     were indicative of a sexual assault. A vaginal swab as well as the
     front and middle crotch of her panties all tested positive for
     sperm cells.       Moreover, DNA isolation procedures were
     performed on the vaginal swab and panties which subsequently
     proved that defendant was a statistical match as a contributor of
     the sperm cells.

           About a month later, on October 20, 2011, the defendant
     was babysitting his other girlfriend's son, the second victim, two
     year old [D.S]. A few hours after the victim's mother went to
     work, the defendant called her lamenting that [D.S.] had fallen
     down the stairs. When the victim's mother returned home, little
     [D.S.] was groaning. His face bruised, [D.S.] could not hold his
     head up, open his eyes, or speak. He was transported to St.
     Christopher's Hospital and placed on life support.

           This two year old victim suffered from multiple injuries
     including severe trauma to his brain, severe bruising, multiple
     abrasions all over his body, swelling to his penis and scrotum,
     hemorrhages to both his brain and eyes, as well as air in the
     abdomen, heart and chest wall cavity resulting from a punctured
     lung. Bruising to his buttocks was indicative of anal penetration.
     Seminal fluid was found on the lower and middle back area of
     the victim's shirt. A brutal violation; the bleeding in his brain
     caused extensive brain damage that has resulted in
     hyperactivity, anger tantrums and some memory loss.

Trial Court Opinion, 6/30/14, at 3-4 (internal citations and footnote

omitted).




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       Appellant proceeded to a jury trial on October 22, 2013.     The jury

returned guilty verdicts on the aforementioned offenses on November 5,

2013. Thereafter, on February 7, 2014, the court sentenced Appellant to the

following consecutive sentences: twenty to forty years incarceration on both

the rape of a child with serious bodily injury and IDSI charges, and five to

ten year terms of imprisonment for both aggravated assault counts. 1      In

addition, the court imposed a concurrent sentence of one to two years for

the EWOC violation.

       Appellant did not file a timely post-sentence motion, but did timely

appeal.    Trial counsel was permitted to withdraw and the court appointed

new counsel. The court directed counsel to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal, and granted in part a motion

for extension.     Counsel subsequently submitted his Rule 1925(b) concise

statement and the court authored its decision. The matter is now ready for

this Court’s review. Appellant presents the following issues for this panel’s

consideration.


____________________________________________


1
  By statute, since Appellant was found guilty of rape of a child causing
serious bodily injury, he was subject to a mandatory period of incarceration
of life imprisonment. 18 Pa.C.S. § 3121(e). However, the Commonwealth
has not contested Appellant’s term of years sentence. Although both this
Court and our Supreme Court have considered mandatory sentences to
present non-waivable legality of sentence questions, we decline to address
the issue absent any briefing.



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    A. Did the trial court err when it found Mr. Esquilin guilty of the
       criminal offenses of aggravated assault, unlawful contact with
       minor and involuntary deviate sexual intercourse (complainant
       D.S.-C.P. #51-CR-0005768-2012) as the DNA taken with regard
       to this matter was inconclusive and the balance of the evidence
       adduced in this matter failed to prove, beyond a reasonable
       doubt, that Mr. Esquilin committed these criminal offenses?

    B. Did the trial court err when it found Mr. Esquilin guilty of the
       criminal offenses of aggravated assault, unlawful contact with
       minor and involuntary deviate sexual intercourse (complainant
       D.S.-C.P. # 51-CR-0005768-2012) as the verdict was against
       the weight of the evidence?

    C. Did the trial court err when it found Mr. Esquilin guilty of the
       criminal offenses of aggravated assault, unlawful contact with
       minor and endangering the welfare of children (complainant K.J.-
       C.P. # 51-CR-0005783-2012), as the verdict was against the
       weight of the evidence?

    D. Did the trial court err when it granted the Commonwealth’s
       “notice of intent to introduce other acts evidence” pursuant to
       Pennsylvania Rule of Evidence 404(B)?

Appellant’s brief at 2.

       In performing a sufficiency review, we consider all of the evidence

admitted, even improperly admitted evidence. Commonwealth v. Watley,

81 A.3d 108, 113 (Pa.Super. 2013) (en banc).2 We view the evidence in a


____________________________________________


2
   Appellant failed to ensure that a complete record was before this Court.
The original certified record only contained transcripts from one day of trial
and sentencing. Since Appellant did request transcripts for purposes of this
appeal, this Court was able to secure additional transcripts. However,
transcripts from several dates were not available. Despite the incomplete
record, it is still evident for reasons outlined in the body of this
memorandum that the Commonwealth presented sufficient evidence.



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light most favorable to the Commonwealth as the verdict winner, drawing all

reasonable inferences from the evidence in favor of the Commonwealth. Id.

       The evidence “need not preclude every possibility of innocence and the

fact-finder is free to believe all, part, or none of the evidence presented.”

Id.   When evidence exists to allow the fact-finder to determine beyond a

reasonable doubt each element of the crimes charged, the sufficiency claim

will fail.   Id.    In addition, the Commonwealth can prove its case by

circumstantial evidence. Where “the evidence is so weak and inconclusive

that, as a matter of law, no probability of fact can be drawn from the

combined circumstances[,]” a defendant is entitled to relief. Id. This Court

does not “re-weigh the evidence and substitute our judgment for that of the

fact-finder.” Id.

       Appellant does not challenge the sufficiency of the evidence with

respect to K.J.     His sufficiency challenge relates solely to his aggravated

assault, unlawful contact with a minor, and IDSI crimes as to D.S.         He

contends that, because the DNA evidence as to that victim was inconclusive,

the Commonwealth did not prove beyond a reasonable doubt that Appellant

assaulted the young victim.

       D.S. suffered a hemorrhage to his brain, a punctured lung, and his

penis and scrotum were swollen. In addition, there were seminal stains on

the back of his shirt and bruises on his buttocks suggestive of anal

penetration.   The victim’s mother acknowledged leaving the child at home

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alone with Appellant.     Appellant admitted that he was alone with the child

immediately before the child’s mother returned home and took the child to

the hospital. Appellant, however, maintained that the injuries occurred as a

result of the child falling down the steps. The doctor who treated the victim

testified that the victim’s injuries could not have occurred from a fall. The

jury was free to reasonably infer that Appellant caused the victim’s severe

injuries and that involuntary deviate sex acts occurred. Appellant’s position

is devoid of merit.

      Appellant’s next two issues relate to the weight of the evidence.    A

weight claim must be preserved in a timely post-sentence motion.

Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa.Super. 2012).

Appellant, in his Rule 1925(b) statement, acknowledged that he did not file a

post-sentence motion. Accordingly, his weight claims are waived.

      The final issue Appellant levels on appeal is that the court erred in

admitting evidence of other bad acts. Evidence of bad acts is inadmissible to

prove that a defendant has bad character or a criminal propensity.       See

Pa.R.E. 404(b).       However, bad acts evidence is admissible for a host of

reasons including to prove motive, intent, knowledge, absence of mistake,

common scheme, to establish identity, and as part of the chain of events

that form the history of the case.     Pa.R.E. 404(b)(2); Commonwealth v.

Brown, 52 A.3d 320 (Pa.Super. 2012). The probative value of the bad acts




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evidence must also outweigh its prejudicial impact in order to be admissible.

Commonwealth v. Powell, 956 A.2d 406, 419 (Pa. 2008).

      The Commonwealth must provide notice that it intends to introduce

bad acts evidence.    Pa.R.E. 404(b)(3) (“In a criminal case the prosecutor

must provide reasonable notice in advance of trial, or during trial if the court

excuses pretrial notice on good cause shown, of the general nature of any

such evidence the prosecutor intends to introduce at trial.”). We consider

the admission of such evidence under an abuse of discretion standard.

Commonwealth v. Patterson, 91 A.3d 55, 68 (Pa. 2014).

      Appellant   argues   that   the   trial   court   erred   in   permitting   the

Commonwealth to introduce evidence that Appellant physically abused the

mother of K.J. The victim’s mother testified that Appellant had placed his

hands on her neck and choked her and that the couple frequently fought.

According to Appellant, this evidence was only used to prove that he acted in

a physically abusive manner in this case.

      The Commonwealth responds that the evidence was introduced to

explain why the victim’s mother initially lied to police and claimed that her

daughter injured herself falling over a toy kitchen set. It notes that after she

recanted her original story, she submitted that she had lied because

Appellant threatened her. According to the Commonwealth, evidence of the

past abuse was “relevant to show that she was afraid of [Appellant] and had

reason to believe his threats.” Commonwealth’s brief at 15. We agree.

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      The credibility of K.J.’s mother was at issue during the trial. In order

to demonstrate why the victim’s mother initially lied to police, the

Commonwealth produced evidence that Appellant threatened her and had

been abusive.      This evidence was admissible not for the purpose of

establishing that Appellant committed the acts herein against K.J., but to

demonstrate why K.J.’s mother initially protected him. Indeed, the jury was

instructed that it could not consider the evidence of his abuse as evidence of

criminal tendencies to infer guilt. The trial court did not abuse its discretion.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/11/2015




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