J-A30009-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

RODRIGO M. ALVARADO

                        Appellant                   No. 1949 MDA 2015


          Appeal from the Judgment of Sentence August 18, 2015
           In the Court of Common Pleas of Cumberland County
           Criminal Division at No(s): CP-21-CR-0002058-2013


BEFORE: BOWES, OLSON AND STABILE, JJ.

MEMORANDUM BY BOWES, J.:                             FILED APRIL 07, 2017

      Rodrigo M. Alvarado appeals from the August 18, 2015 judgment of

sentence imposed following his conviction of aggravated indecent assault of

a child, aggravated indecent assault, and two counts each of corruption of

minors and indecent assault. We affirm.

      We summarize the facts from the certified record.       The convictions

stem from Appellant’s repeated sexual assault of his minor nieces, K.C. and

G.Z., over a period of years. At the time of the first incident, K.C. was five

years old. While she was practicing her cheerleading at Appellant’s home,

he told her to remove her clothes.    She complied until he directed her to

remove her underwear. At that point, she refused as she felt uncomfortable.
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      On another occasion around that same time, Appellant removed his

own clothes, and entered the bathtub with K.C. and began to wash her body.

Later, when K.C. was in the fourth grade, there were four or five incidents

during weekend visits to Appellant’s home where Appellant removed his

clothes and entered the shower with K.C. and washed her back and

posterior. When she was ten or eleven years of age, Appellant brought her

into his bed and massaged her while he was physically aroused. On all of

the aforementioned occasions, K.C. felt uncomfortable, but she did not tell

anyone for fear of the effect upon her family.

      By the time K.C. was twelve or thirteen years old, she no longer

wanted to go to Appellant’s home.        Approximately three years later, she

confided in her boyfriend about the incidents. It was about one year later,

during her junior and senior years in high school, that K.C. learned from her

sister that she too had been a victim of Appellant’s abuse.     K.C. wrote a

letter to her mother detailing Appellant’s sexual assaults.    At the time of

trial, K.C. was nineteen years of age.

      G.Z., age fourteen at the time of trial, testified about two incidents

when Appellant touched her inappropriately. During a game of monster in

the basement of Appellant’s home when she was nine or ten years old,

Appellant touched her breasts and led her into a laundry room where he

instructed her to remove her underwear.          He digitally penetrated her

vaginally but stopped when she told him he was hurting her. The second

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incident occurred when she was eleven or twelve. Appellant told her to get

in the shower and he followed, naked, and washed her back.              She was

uncomfortable and asked him to stop after a couple of minutes.                G.Z.

testified that she did not report the abuse as she feared it would ruin her

relationship with her cousins who resided with Appellant.             When she

eventually told K.C., the abuse was reported to authorities and criminal

charges were filed.

        Appellant denied the allegations and maintained that the lock on the

bathroom door was difficult to unlock from the outside.        His wife disputed

that the basement area where the abuse allegedly occurred was used as a

play area and denied all knowledge of any assaults.           Several character

witnesses testified to Appellant’s reputation for truthfulness. The jury found

Appellant guilty of the above-delineated charges.

        On August 18, 2015, the court sentenced Appellant to an aggregate

sentence of seven to twenty years imprisonment followed by five years of

probation.       Thereafter, Appellant filed a timely post-sentence motion on

August 26, 2015, which the court denied by order dated September 30,

2015.        Appellant filed the within appeal on November 5, 2015.    He raises

two issues:

        I.      Did the trial court err in denying Appellant’s motion for a
                new trial when the verdicts were against the weight of the
                evidence?




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      II.   Did the trial court err in precluding Appellant from
            questioning the alleged victims regarding their refusal to
            submit to a medical exam on the basis that such testimony
            was irrelevant?

Appellant’s brief at 8.

      Preliminarily, the Commonwealth contends that this Court lacks

jurisdiction to hear the within appeal as Appellant’s notice of appeal was filed

thirty-seven days after the order denying his post-sentence motion. It relies

upon Pa.R.Crim.P. 720(1)–(2)(a), which provides that an appeal must be

filed within thirty days from the entry of the order deciding the post-

sentence motion. The Commonwealth cites our decision in Commonwealth

v. Valentine, 928 A.2d 346, 349 (Pa.Super. 2007), for the proposition that

time limitations on appeal are to be strictly construed absent a breakdown in

the operation of the courts.

      Our review of the certified record reveals that the trial court’s order

denying Appellant’s post-sentence motion, although dated September 30,

2015, was not docketed in the record until October 9, 2015.               Thus,

Appellant’s notice of appeal filed on November 5, 2015 was timely, and this

Court has jurisdiction to entertain the within appeal. See Pa.R.A.P. 301(a)

(“[N]o order of a court should be appealable until it has been entered in the

appropriate docket in the lower court.”); see also Pa.R.A.P. 903(a) (“[T]he

notice of appeal . . . should be filed within 30 days after entry of the order

from which the appeal is taken.”) (emphasis added).



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      Appellant’s first issue presents a challenge to the weight of the

evidence, which was preserved in a timely filed post-sentence motion and

addressed by the trial court in its Pa.R.A.P. 1925(a) opinion. At trial, “[t]he

weight given to trial evidence is a choice for the factfinder. If the factfinder

returns a guilty verdict, and if a criminal defendant then files a motion for a

new trial on the basis that the verdict was against the weight of the

evidence, a trial court is not to grant relief unless the verdict is so contrary

to the evidence as to shock one's sense of justice.”       Commonwealth v.

Ferguson, 107 A.3d 206, 212-13 (Pa.Super. 2015).

      When a trial court denies a weight-of-the-evidence motion, and
      when an appellant then appeals that ruling to this Court, our
      review is limited. It is important to understand we do not reach
      the underlying question of whether the verdict was, in fact,
      against the weight of the evidence. We do not decide how we
      would have ruled on the motion and then simply replace our own
      judgment for that of the trial court. Instead, this Court
      determines whether the trial court abused its discretion in
      reaching whatever decision it made on the motion, whether or
      not that decision is the one we might have made in the first
      instance.

Id. at 213 (citations omitted). An abuse of discretion by a trial court is not

merely an error in judgment, but “bias, partiality, prejudice, ill will, manifest

unreasonableness or a misapplication of the law.” Id.

      Appellant claims that the Commonwealth’s evidence was “inconsistent

and overly vague.” Appellant’s brief at 21. He points to the fact that the

teenage victims were unable to remember the timing of the incidents of

abuse or the details of the events leading up to the occurrences. Appellant

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focuses on discrepancies in the victims’ factual accounts and argues that

they undermined the credibility of those witnesses, and that his witnesses

should be deemed more believable.                Thus, he contends that it was

manifestly unreasonable for the trial court to find that the verdict did not

shock one’s sense of justice.

       The trial court noted that defense counsel “ably cross examined both

victims to expose the infirmities of their memories.”       Trial Court Opinion,

3/1/16, at 5. While the teenage victims’ recollections of the abuse were “not

perfect,” it “found their testimony credible and persuasive.”         Id.   The

contrary evidence offered by the defense was “simply not so weighty as to

counterbalance the credible victim testimony.” Id. The trial court concluded

that the verdicts did not shock its conscience and that they should not be

disturbed on appeal. We find no abuse of discretion on the part of the trial

court and, hence, no basis to disturb its finding that the verdicts were not

against the weight of the evidence.

       Appellant’s second contention is that the trial court erred by precluding

him from cross-examining G.Z. and K.C. regarding their refusal to submit to

a medical examination.1 The impeachment was deemed irrelevant.


____________________________________________


1
 The record reveals that K.C. testified prior to G.Z., and Appellant did not
question K.C. about her refusal to submit to a medical examination. Thus,
we limit Appellant’s argument to G.Z. only.



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      It is well settled that, “[a]dmission of evidence is within the sound

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

trial court clearly abused its discretion.”   Commonwealth v. Tyson, 119

A.3d 353, 357-58 (Pa.Super. 2015). Furthermore,

      Admissibility depends on relevance and probative value.
      Evidence is relevant if it logically tends to establish a material
      fact in the case, tends to make a fact at issue more or less
      probable or supports a reasonable inference or presumption
      regarding a material fact.

Commonwealth v. Drumheller, 808 A.2d 893, 904 (Pa. 2002) (citation

omitted).   Additionally, this ruling limited the scope of cross-examination.

The trial court has broad discretion "to determine the scope and limits of

cross-examination and that this Court cannot reverse those findings absent a

clear abuse of discretion or an error of law."   Commonwealth v. Rivera,

983 A.2d 1211 (Pa. 2009) (quoting Commonwealth v. Nolen, 634 A.2d

192, 195 (Pa. 1993)).

      Appellant contends that G.Z.’s refusal to submit to a medical

examination was relevant as it would support a reasonable inference that

the accusations were fabricated and that there was no evidence of trauma.

The Commonwealth argues that the issue should be deemed waived since

Appellant failed to develop this argument or cite any pertinent authority in

support of his position.   See Commonwealth v. Walter, 966 A.2d 560,

566 (Pa. 2009) (issue waived for failure to preserve it below and develop it

on appeal).    We decline to find waiver on this basis.         Secondly, the

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Commonwealth contends that the trial court properly exercised its discretion

to preclude inquiry into an irrelevant matter.

      The issue arose during the cross-examination of G.Z. Defense counsel

asked her whether, during her conversation with the nurse at the Child

Resource Center, she was asked or encouraged to have a medical

examination. N.T., 5/11-13/15, at 154. The Commonwealth objected, and

discussion followed at sidebar. Defense counsel informed the court that she

intended to elicit testimony from G.Z. that she refused a medical

examination.   Id. at 155.    Counsel represented further that K.C. had also

refused a medical examination.       Id.    The Commonwealth argued that this

fact was irrelevant and victim-blaming. Id. The court agreed the evidence

was   irrelevant   and   sustained    the    objection   on   that   basis.   The

Commonwealth added that neither party had a medical expert ready to

testify about the nature or likelihood of such injuries or whether trauma

would have been detectable years after the abuse.

      Appellant has failed to demonstrate an abuse of discretion on the part

of the trial court.   The trial court found that G.Z.’s refusal to submit to a

medical examination years after the abuse had “remarkably low probative

value[,]” which would be far outweighed by the danger of unfair prejudice.

It declined to impute knowledge to G.Z., who was fourteen years old at the

time, that there could have been evidence of scarring years after the

molestation. We find no abuse of discretion in the trial court’s rationale for

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precluding this line of inquiry. In addition, without expert medical testimony

establishing   that   a   medical   examination   performed   years   after   the

molestation likely would reveal physical evidence of such abuse, such an

inference was not present.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/7/2017




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