J. A09003/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                     v.                  :
                                         :
ELIEZER ALMANZAR,                        :         No. 1049 MDA 2015
                                         :
                          Appellant      :


          Appeal from the Judgment of Sentence, December 29, 2014,
                  in the Court of Common Pleas of York County
               Criminal Division at No. CP-67-CR-0000294-2014


BEFORE: FORD ELLIOTT, P.J.E., JENKINS AND PLATT,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JULY 20, 2016

        Eliezer Almanzar appeals from the judgment of sentence entered on

December 29, 2014, after a jury convicted him of one count of involuntary

deviate sexual intercourse with a child1 (“IDSI”), one count of aggravated

indecent assault of a child,2 and one count of corruption of minors.3 The trial

court sentenced appellant to a term of incarceration of 6 to 12 years on the

IDSI count, which merged with the aggravated indecent assault count, and




* Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3123(b).
2
    18 Pa.C.S.A. § 3125(b).
3
    18 Pa.C.S.A. § 6301(a)(1)(ii).
J. A09003/16


to a concurrent 5-year term of incarceration on the corruption of minors

count. We affirm.

      The record reflects that appellant’s convictions stem from an incident

involving the 4-year-old daughter of appellant’s then-girlfriend. The incident

occurred on September 7, 2013.           On that day, appellant had made

arrangements with the victim’s mother to pick the victim up at her

babysitter’s home, take her out to eat, and take her to a movie. (Notes of

testimony, 9/9-11/14 at 159.) After appellant picked the victim up, he took

her to his home, claiming that he needed to get money and his phone

charger. (Id. at 159.) While at his residence, appellant took the victim to

his bedroom, removed her pants and underwear, and licked her vagina.

(Id. at 84-93.) Afterwards, appellant instructed the victim that she should

not tell her mother. (Id. at 86.) He then took the victim to McDonald’s for

a Happy Meal and then to an ice cream shop. (Id. at 85-86.) The next day,

the victim told her mother that appellant had licked her private part. (Id. at

86, 100.) The victim’s mother immediately called police and took the victim

to a hospital emergency room. (Id. at 101.)

      The trial court set forth the following procedural history:

                  On March 21, 2014, [appellant] filed an
            Omnibus Pretrial Motion. The Commonwealth lodged
            a response on June 24, 2014. The Commonwealth
            then filed Commonwealth’s Motion to Allow
            Testimony of Out-of-Court Statements Made by Child
            Victims Pursuant to 42 Pa.C.S.A. § 5985.1, on
            June 27, [2014]. Following a hearing on August 22,
            2014, we denied the suppression of Appellant’s


                                     -2-
J. A09003/16


          confession, which had been challenged in Appellant’s
          Omnibus.     And on August 29, 2014, at the
          conclusion of a hearing, this Court granted the
          Commonwealth’s tender years exception.

                On September 11, 2014, a jury of the
          Appellant’s peers found him guilty of [IDSI],
          Aggravated Indecent Assault of a Child, and
          Corruption of Minors.      We raised the issue of
          merging counts and then set it aside to be dealt with
          at the time of sentencing. On September 22, 2014,
          the Appellant filed a Motion for Arrest of
          Judgment/Motion      for    Acquittal.[Footnote    2]
          Thereafter, the Appellant filed a Motion for
          Extraordinary [R]elief, which was docketed on
          December 19, 2014, that challenged [the]
          Commonwealth for having invoked a mandatory
          minimum. [The] Commonwealth filed a response on
          December 26, 2014; however, at sentencing, on
          December 29, 2014, the Commonwealth dropped the
          mandatory minimum because new case law
          convinced them that it was unconstitutional. We
          then proceeded to sentence the Appellant to six to
          twelve years for the [IDSI] and a concurrent term of
          five years for Corruption of Minors. We merged the
          Indecent Assault charge with the [IDSI] charge.

               [Footnote 2] This motion stated that
               counsel was gathering more information
               for this motion. We do not see in the
               record that we disposed of the motion;
               however, nor do we see that defense
               counsel     submitted   any     further
               information upon which the motion was
               to be based. Rather, we believe the
               motion was dealt with through timely
               post-sentence motions.

                 On January 8, 2015, the Appellant filed post-
          sentence motions. As a result of the motions being
          undecided within one hundred and twenty days of
          filing, they were denied as a matter of law in
          accordance with Rule 720 of the Rules of Criminal
          Procedure. Counsel for the Appellant then filed an


                                  -3-
J. A09003/16


            appeal with the Superior Court [which] ordered him
            to file the Appellant’s Praecipe for Entry of Order
            Denying Post-Sentence Motions by Operation of Law,
            which counsel did on July 21, 2015. We signed a
            related order on July 28, 2015.

                  On June 17, 2015, this Court received a Notice
            of Appeal.   On July 1, 2015, pursuant to Rule
            1925(b) of the Pennsylvania Rules of Appellate
            Procedure, we ordered the Appellant to file a
            statement of matters complained of. That statement
            was docketed on July 21, 2015.

Trial court opinion, 10/28/154 at 1-3 (footnote 1 omitted).

      Appellant raises the following issues for our review:

            I.     Whether the [T]rial Court erred by not granting
                   the Appellant’s [Judgment] of Acquittal as the
                   Commonwealth failed to prove in their case
                   that there was penetration which was a
                   necessary element to support the charge of []
                   IDSI?

            II.    Whether the Trial Court erred by not granting
                   the Appellant’s Suppression Motion with
                   respect to statements made to the police at
                   the time of his interview as said statements
                   were provided under a coercive environment
                   and the Court’s failure to do so prejudiced the
                   Appellant at the time of trial?

Appellant’s brief at 6.

            The standard we apply in reviewing the sufficiency of
            the evidence is whether viewing all the evidence
            admitted at trial in the light most favorable to the
            verdict winner, there is sufficient evidence to enable
            the fact-finder to find every element of the crime
            beyond a reasonable doubt. In applying the above
            test, we may not weigh the evidence and substitute

4
   We note that the trial court’s opinion is dated October 27, 2015, but was
filed on October 28, 2015.


                                     -4-
J. A09003/16


            our judgment for the fact-finder. In addition, we
            note that the facts and circumstances established by
            the Commonwealth need not preclude every
            possibility of innocence. Any doubts regarding a
            defendant’s guilt may be resolved by the fact-finder
            unless the evidence is so weak and inconclusive that
            as a matter of law no probability of fact may be
            drawn from the combined circumstances.               The
            Commonwealth may sustain its burden of proof of
            proving every element of the crime beyond a
            reasonable doubt by means of wholly circumstantial
            evidence. Moreover, in applying the above test, the
            entire record must be evaluated and all the evidence
            actually received must be considered. Finally, the
            trier of fact while passing upon the credibility of
            witnesses and the weight of the evidence produced,
            is free to believe all, part or none of the evidence.

Commonwealth v. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004)

(citation omitted).

      The Crimes Code defines IDSI as follows: “A person commits

involuntary deviate sexual intercourse with a child, a felony of the first

degree, when the person engages in deviate sexual intercourse with a

complainant who is less than 13 years of age.” 18 Pa.C.S.A. § 3123(b). The

Crimes Code defines deviate sexual intercourse, in relevant part, as

“[s]exual intercourse per os or anus between human beings.” 18 Pa.C.S.A.

§ 3101.   The Crimes Code defines sexual intercourse, in relevant part as,

“[i]n addition to its ordinary meaning, [it] includes intercourse per os or per

anus, with some penetration however slight.” Id. This court has held that

“any involuntary contact by the mouth, including the tongue as well as the

lips, [with the sexual organ of another person] . . . meet[s] the test of



                                     -5-
J. A09003/16


involuntary deviate sexual intercourse.” Commonwealth v. L.N., 787 A.2d

1064, 1071 (Pa.Super. 2001), appeal denied, 800 A.2d 931 (Pa. 2002).

See also In the Interest of J.R., 648 A.2d 28 (Pa.Super. 1994), appeal

denied, 655 A.2d 515 (Pa. 1995) (stating that “[d]eviate sexual intercourse

is considered to have occurred if one’s mouth or tongue penetrates the

vaginal area of another”); see also Commonwealth v. McIlvaine, 560

A.2d 155 (Pa.Super. 1989), reversed on other grounds, 603 A.2d 1021

(Pa. 1992) (holding that where victim was forced to kiss defendant’s penis,

testimony was sufficiently descriptive to warrant the inference by the jury

that defendant penetrated, “however, slight,” the victim’s mouth).

      Here, appellant complains that there was insufficient evidence to

convict him of IDSI because the victim did not testify at trial that appellant

penetrated her. Appellant goes on to complain that the trial court somehow

erred in admitting the victim’s videotaped Children’s Advocacy Center

(“CAC”) interview, despite appellant stipulating to its admission. Appellant

argues that but for the admission of that videotape, which, again, appellant

stipulated to, there would have been no evidence of penetration sufficient to

convict appellant of IDSI because the victim did not testify at trial that

appellant penetrated her. Appellant further complains that because he was

not present at the CAC interview, he was unable to cross-examine the victim

with respect to penetration. Appellant is mistaken.

      The record reflects that the victim testified as follows:



                                      -6-
J. A09003/16


            Q.    Okay. What did he do after he pulled down
                  your pants?

            A.    Licked me.

            Q.    He licked you?

            A.    (Nodded head affirmatively.)

            Q.    Okay. Where did he lick you?

            A.    Down where he pulled down my pants.

            Q.    And what do you call the part that he licked?

            A.    My private.

Notes of testimony, 9/9-11/14 at 83-84. The Commonwealth then showed

the victim a drawing of a naked female and requested her to circle the part

of the female’s body that appellant licked. (Id. at 84-85.) The victim circled

the female genitalia. (Id. at 85; see also Commonwealth Exhibit 1.)

      Clearly, the record reflects that the Commonwealth produced evidence

that there was oral contact with appellant’s mouth and the victim’s genitalia.

That evidence was sufficient to establish penetration however slight in order

to convict appellant of IDSI.

      To the extent that the victim’s trial testimony contradicted what she

said during the CAC interview, such contradictions were to be resolved by

the fact-finder, which, in this case, was a jury of appellant’s peers. It is not

our role to usurp the fact-finder’s function, and we will not do so. Finally,

because appellant cross-examined the victim at trial, the record belies his




                                     -7-
J. A09003/16


complaint that he had no opportunity to cross-examine the victim with

respect to penetration. Therefore, appellant’s first claim lacks merit.

      Appellant’s second and final complaint is that the trial court erred in

denying his motion to suppress appellant’s confession.

      Our standard of review for challenges to the denial of a suppression

motion is as follows:

            [We are] limited to determining whether the
            suppression court’s factual findings are supported by
            the record and whether the legal conclusions drawn
            from those facts are correct.           Because the
            Commonwealth prevailed before the suppression
            court, we may consider only the evidence of the
            Commonwealth and so much of the evidence for the
            defense as remains uncontradicted when read in the
            context of the record as a whole.          Where the
            suppression court’s factual findings are supported by
            the record, we are bound by these findings and may
            reverse only if the court’s legal conclusions are
            erroneous.     Where . . . the appeal of the
            determination of the suppression court turns on
            allegations of legal error, the suppression court’s
            legal conclusions are not binding on an appellate
            court, whose duty it is to determine if the
            suppression court properly applied the law to the
            facts. Thus, the conclusions of law of the courts
            below are subject to our plenary review.

Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa.Super. 2012),

appeal denied, 65 A.3d 413 (Pa. 2013) (citations omitted).




                                     -8-
J. A09003/16


        Here, appellant specifically complains that because he was subject to a

custodial interrogation and was not given his Miranda5 warnings, the trial

court erred in denying his suppression motion.

             “Police detentions in Pennsylvania become custodial
             when, under the totality of the circumstances, the
             conditions and/or duration of the detention become
             so coercive as to constitute the functional equivalent
             of arrest.”    Commonwealth v. Ellis, 549 A.2d
             1323, 1332 (Pa.Super. 1988) (citing California v.
             Beheler, 463 U.S. 1121, (1983)). “Interrogation is
             police conduct calculated to, expected to or likely to
             evoke admission.” Commonwealth v. Johnson,
             541 A.2d 332, 336 (Pa.Super. 1988) (citation and
             quotations omitted). The overlying test to determine
             whether a person is being subjected to a custodial
             interrogation necessitating Miranda warnings is
             whether he is physically deprived of his freedom in
             any significant way or is placed in a situation in
             which he reasonably believes that his freedom of
             action or movement is restricted by such
             interrogation.    See Commonwealth v. Chacko,
             459 A.2d 311, 314 (Pa. 1983). “The standard for
             determining whether police have initiated a custodial
             interrogation or an arrest is an objective one, with
             due consideration given to the reasonable impression
             conveyed to the person interrogated rather than the
             strictly subjective view of the troopers or the person
             being seized.” Commonwealth v. Edmiston, 634
             A.2d 1078, 1085-86 (Pa. 1993). The factors that the
             court considers to determine whether there has been
             a custodial interrogation include: the basis for the
             detention; its length; its location; whether the
             suspect was transported against his or her will, how
             far and why; whether restraints were used; whether
             the law enforcement officer showed, threatened or
             used force; and the investigative methods employed
             to     confirm    or   dispel    suspicions.      See
             Commonwealth v. Peters, 642 A.2d 1126, 1130
             (Pa.Super. 1994) (en banc).

5
    Miranda v. Arizona, 384 U.S. 436 (1966).


                                      -9-
J. A09003/16



           Police detentions become custodial when, under the
           totality of the circumstances, the conditions and/or
           duration of the detention become so coercive as to
           become the functional equivalent of an arrest. See
           Ellis, 549 A.2d at 1332. “Arrest is an act that
           indicates an intention to take a person into custody
           or that subjects the person to the will and control of
           the person making the arrest.” Commonwealth v.
           Gwynn, 723 A.2d 143, 148 (Pa. 1998).

Commonwealth v. Turner, 772 A.2d 970, 974 (Pa.Super. 2001).

     We    must   first   determine   whether,     under   the   totality   of   the

circumstances, the detention became so coercive as to constitute the

functional equivalent of arrest and, consequently, necessitate the provision

of Miranda warnings.

     The record reflects that Detective Kyle Hower of the York County Police

Department contacted appellant and asked him if he would be willing to

speak with the detective.    (Notes of testimony, 6/26/14 at 18.)           The two

then made arrangements for the interview. (Id.) Appellant arrived at the

police department voluntarily.    (Id.)        Because appellant made his own

transportation arrangements, nothing in the record indicates that appellant

was transported to the police department against his will. (Id.)

     In addition to Detective Hower, Amy Abel, of Children & Youth, was

present. (Id. at 7, 18.) The interview lasted approximately one hour. (Id.

at 12.)    Nothing in the record indicates that restraints were used.

Detective Hower told appellant that appellant was free to leave at any time

and that he was not under arrest. (Id. at 11-12.) The door to the interview


                                      - 10 -
J. A09003/16


room remained unlocked during the interview. (Id. at 11.) Appellant never

asked to leave the interview. (Id. at 9, 16). Appellant never tried to leave

the interview.      (Id. at 10, 16.)   Detective Hower provided appellant with

water.    (Id. at 19.)    Nothing in the record indicates that Detective Hower

showed, threatened, or used force during the interview.              Detective Hower

testified that he used the investigative method of moving his chair closer to

appellant in order to establish rapport.          (Id. at 18-19.)    Appellant did not

shy away from the detective when he moved closer to appellant.                 (Id. at

20.) At the conclusion of the interview, appellant left the department. (Id.

at 10.)

      Under the totality of the circumstances, the detention was not

custodial because nothing in the record indicates that appellant was

physically deprived of his freedom in any significant way or placed in a

situation where he would reasonably believe his freedom of action or

movement was restricted.         Consequently, appellant was not entitled to

Miranda warnings.

      We     must     next   determine    whether      appellant’s   confession   was

voluntary.

             Voluntariness is determined from the totality of the
             circumstances surrounding the confession.        The
             question of voluntariness is not whether the
             defendant     would     have    confessed    without
             interrogation, but whether the interrogation was so
             manipulative or coercive that it deprived the
             defendant of his ability to make a free and
             unconstrained     decision   to   confess.       The


                                         - 11 -
J. A09003/16


            Commonwealth has the burden of proving by a
            preponderance of the evidence that the defendant
            confessed voluntarily.

Commonwealth v. Ogrod, 839 A.2d 294, 320 (Pa. 2003) (citation

omitted).

      Here, the Commonwealth met its burden.          Under the totality of the

circumstances as set forth above, nothing in the record suggests that the

confession was the product of manipulation or coercion. Rather, appellant

arrived at the interview freely and voluntarily, and appellant confessed freely

and voluntarily. Therefore, this claim lacks merit.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/20/2016




                                    - 12 -
