J-S44007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

HECTOR G. GONZALES,

                        Appellant                  No. 3690 EDA 2015


       Appeal from the Judgment of Sentence Entered July 31, 2015
          In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0013380-2013


COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

HECTOR G. GONZALES,

                        Appellant                  No. 3691 EDA 2015


       Appeal from the Judgment of Sentence Entered July 31, 2015
          In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0013381-2013


BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                 FILED NOVEMBER 21, 2017

     Appellant, Hector G. Gonzales, appeals from the judgment of sentence

of an aggregate term of 21 to 42 years’ incarceration, imposed after he was

convicted, in two separate cases, of various crimes including attempted rape
J-S44007-17



by forcible compulsion and unlawful restraint.1         Appellant challenges the

discretionary aspects of his sentence, as well as the sufficiency and weight of

the evidence to sustain his convictions.         After careful review, we find no

merit to those claims. However, we sua sponte determine that the portion

of the court’s July 31, 2015 sentencing order that deems Appellant a

Sexually Violent Predator (SVP) under the Sexual Offender Registration and

Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10-9799.41, is illegal.

Therefore, we vacate in part, affirm in part, and remand for further

proceedings.

       The trial court summarized the facts of Appellant’s case, as follows:

             At trial, the Commonwealth of Pennsylvania established
       that [Appellant] initially accosted two females, [C.Q.] and
       [M.R.], who were strangers to him, as they walked through a
       park near 3rd & Cumberland Streets in Philadelphia on July 1,
       2013, around 11 p.m.2 Specifically, [C.Q.] testified that she
       received a phone call earlier from her friend [M.R.] asking to
       meet for a night out at a local pub. [M.R.] stopped at [C.Q.’s]
       house and waited downstairs. [C.Q.] further testified that she
       witnessed [M.R.] ingest two Xanax pills, which were prescribed
       to her. These two friends walked to a bar in the neighborhood,
       where they each drank a shot and a beer. When these two
       females later passed the bar, a male on a bike approached them
       along North Fourth Street. [C.Q.] unequivocally identified this
       male in the courtroom as [Appellant].       She explained that
       [Appellant] kept following them as they walked through the

____________________________________________


1
  On December 28, 2015, this Court issued a per curiam order that sua
sponte consolidated Appellant’s appeals in each of his two cases.

2
 To protect the privacy of the victims in this case, we have changed their
names to initials.



                                           -2-
J-S44007-17


     park. He offered a cigarette, to which [C.Q.] quickly replied[,]
     “no, and get away.”

           [C.Q.] testified [that Appellant] stated that he was “trying
     to have fun,” and repeatedly suggested that he and they engage
     in a “threesome,” and made repeated foul mouthed sexual
     requests. [Appellant] ignored the women’s entreaties to leave
     them alone and their clear statements that they were not
     interested in his crude sexual advances. [C.Q.] informed him
     that they were not interested in the attention of any males.
     [Appellant] then became aggressive with her friend, [M.R.], and
     began touching her on her hands and breast.

            [Appellant] continued to badger both women, “talking
     dirty,” and stating that he wanted to have a three-way orgy.
     [Appellant] walked up to [C.Q.], grabbed her shoulder, [and] felt
     her breast. She immediately pushed him away. [C.Q.] stated to
     leave [M.R.] alone because she was messed up because of the
     Xanax and alcohol. She clearly voiced to him that he should
     leave the area entirely and go to where the prostitutes were
     available. [C.Q.] started walking away, towards the bar, to alert
     her friends to help them. When [C.Q.] returned with her friends,
     she witnessed [Appellant], with his pants down, pounding [his
     body] on top of [M.R.] as she lay on the ground struggling and
     yelling to fend him off of her. [C.Q.] and her two friends “O” and
     “Black” started pulling [Appellant] off of [M.R.]; [Appellant’s]
     underwear was down to his ankles. [M.R.’s] pants had been
     pulled down her legs and her underwear [was] ripped. She was
     hysterical.

            [M.R.’s] testimony at trial strongly corroborated her
     friend’s recollection of events that evening. [M.R.] testified that
     when [C.Q.] walked away to meet their friends, [Appellant]
     jumped on top of her and pulled [her] to the ground in a park
     area. She testified that [Appellant] pulled out his penis, and
     attempted to insert his penis in her mouth and tried to go in her
     pants. [M.R.] testified that she had a few drinks that night, as
     well as her prescribed Xanax, and had subsequent difficulties
     with her memory, but that those circumstances did not prohibit
     her from recalling material facts as she recalled events of that
     night.

           [M.R.] also testified that [Appellant], while his hands were
     in her pants, ripped her underwear and pulled them down to her
     ankles. She clearly recalled flailing her arms to try to stop him


                                    -3-
J-S44007-17


     and yelling. When her friends returned they pulled [Appellant]
     off of her as she struggled on the ground. [Appellant] ran down
     an alley way [sic] naked, with [C.Q.] friends in hot pursuit.
     When [Appellant] entered a house, multiple people called police
     reporting a naked man sitting on the steps of a home in the
     2600 block of Orianna Street.

            Philadelphia Police Officer Jason Judge credibly testified to
     responding to a radio call that dispatched him to the area of 3rd
     and Cumberland Streets in Philadelphia. Upon arrival[,] he was
     approached by two upset women who had excitedly reported
     that [Appellant] approached them and attempted to sexually
     assault them after [they had] rebuffed … his unwanted
     advances. They and other person[s] directed the responding
     officers toward the 2600 block of Orianna Street as the path of
     [Appellant’s] flight.

           Police Officer Judge testified that the complainant, [M.R.],
     told him that a male, who was a complete stranger to her[,]
     sexually assaulted her by attempting to penetrate her vagina,
     and that she had tried to fight him. She told him that the male
     then attempted to place his penis in her mouth. Officer Judge
     further testified that [M.R.’s] clothes were disheveled, ripped and
     torn, and that she appeared to be visibly distraught.

            Philadelphia Police Officer Cyprian Scott, of the
     Philadelphia Police SWAT Team, testified that he and his team
     were called to a report of a male barricaded inside 2628 North
     Orianna Street, Philadelphia, PA[], which was located a block
     and one-half from the reported sexual assault location. Officer
     Scott further testified that upon arriving at the house, he was
     informed that the male inside had been chased by citizens after
     committing a sexual assault. The male inside, later identified as
     [Appellant], rebuffed requests by SWAT members to peaceably
     exit the property for three hours before the SWAT team made
     forcible entry into the property. Officer Scott stated that orders
     were given to break through the front door.

            Once inside the residential property, officers cleared the
     first floor and heard [Appellant] moving upstairs in a second
     floor bedroom. [Appellant] yelled to the officers that he would …
     come down the stairs as long as his dog was unharmed. Per
     direction, [Appellant] placed the pit bull terrier into a second
     floor bedroom where [the dog] remained unharmed. [Appellant]



                                    -4-
J-S44007-17


     was finally subdued and arrested after positive identifications
     were made from the victims.

Trial Court Opinion (TCO), 11/16/16, at 4-7 (citations to the record

omitted).

     Appellant was charged with various offenses stemming from the

above-stated facts, and he proceeded to a jury trial in March of 2015. On

March 19, 2015, the jury convicted him of attempted rape by forcible

compulsion, 18 Pa.C.S. §§ 901, 3121(a)(1); attempted involuntary deviate

sexual intercourse by forcible compulsion, 18 Pa.C.S. §§ 901, 3123(a)(1);

unlawful restraint - serious bodily injury, 18 Pa.C.S. § 2902(a)(1); indecent

exposure,   18   Pa.C.S.   §   3127(a);   and    indecent   assault   by   forcible

compulsion, 18 Pa.C.S. § 3126(a)(2).            Following the preparation of a

presentence report and mental health evaluation, a combined sentencing

and sexually violent predator (SVP) hearing was conducted on July 31, 2015.

At the conclusion thereof, the court imposed an aggregate sentence of 21 to

42 years’ incarceration, and determined that Appellant is an SVP.

     Appellant filed a timely post-sentence motion which was denied on

December 4, 2015. Appellant then filed a timely notice of appeal, and also

timely complied with the trial court’s order to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal.           Herein, Appellant

presents three issues for our review:

     I. Whether [Appellant’s] sentence was manifestly excessive[?]

     II. Whether the evidence was sufficient as a matter of law to
     convict [Appellant] of criminal attempt - rape by forcible
     compulsion…[?]

                                     -5-
J-S44007-17


      III. Whether the verdict was against the weight of the
      evidence[?]

Appellant’s Brief at 8.

      Appellant’s first issue is a challenge to the discretionary aspects of his

sentence.

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. Commonwealth v.
      Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
      challenging the discretionary aspects of his sentence must
      invoke this Court’s jurisdiction by satisfying a four-part test:

         We conduct a four-part analysis to determine: (1) whether
         appellant has filed a timely notice of appeal, see Pa.R.A.P.
         902 and 903; (2) whether the issue was properly
         preserved at sentencing or in a motion to reconsider and
         modify sentence, see Pa.R.Crim.P. 720; (3) whether
         appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
         (4) whether there is a substantial question that the
         sentence appealed from is not appropriate under the
         Sentencing Code, 42 Pa.C.S.[] § 9781(b).

      Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
      2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006).
      Objections to the discretionary aspects of a sentence are
      generally waived if they are not raised at the sentencing hearing
      or in a motion to modify the sentence imposed.
      Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super.
      2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

      The determination of what constitutes a substantial question
      must be evaluated on a case-by-case basis. Commonwealth v.
      Paul, 925 A.2d 825, 828 (Pa. Super. 2007). A substantial
      question exists “only when the appellant advances a colorable
      argument that the sentencing judge’s actions were either: (1)
      inconsistent with a specific provision of the Sentencing Code; or
      (2) contrary to the fundamental norms which underlie the
      sentencing process.” Sierra, supra at 912–13.

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).


                                     -6-
J-S44007-17



      Here, Appellant filed a timely notice of appeal, he preserved his

sentencing challenge in a post-sentence motion, and he has presented a

Rule 2119(f) statement in his appellate brief. Thus, we must determine if he

has raised a substantial question for our review.            In his Rule 2119(f)

statement, Appellant argues that,

      [t]he aggregate sentence of twenty-one (21) to forty-two (42)
      years of imprisonment imposed by the sentencing judge is
      manifestly excessive. The sentence is manifestly excessive[]
      because it constitutes too severe a punishment and is grossly
      disproportionate to the crimes, particularly in light of the facts
      surrounding the criminal episode. Moreover, the sentencing
      judge did not expressly or implicitly consider the general
      standards applicable to sentencing found in 42 Pa.C.S. § 9721,
      i.e., the protection of the public; the gravity of the offense in
      relation to the impact on the victim and the community; and the
      rehabilitative needs of [Appellant].     Based on the forgoing,
      [Appellant’s] sentence is “clearly unreasonable.”

Appellant’s Brief at 15 (internal citations omitted).

      While Appellant presents relatively boilerplate claims in his Rule

2119(f)   statement,   we   will   nevertheless   consider    his   assertions   as

constituting substantial questions for our review. See Commonwealth v.

Derry, 150 A.3d 987, 992 (Pa. Super. 2016) (“An averment that ‘the trial

court failed to consider relevant sentencing criteria, including the protection

of the public, the gravity of the underlying offense and the rehabilitative

needs of [the a]ppellant, as 42 Pa.C.S.[] § 9721(b) requires[,]’ presents a

substantial question for our review in typical cases.”) (citations omitted);

Commonwealth v. Malovich, 903 A.2d 1247, 1253 (Pa. Super. 2006)




                                      -7-
J-S44007-17



(“[C]laims that a penalty is excessive and/or disproportionate to the offense

can raise substantial questions.”).

       However, we conclude that Appellant’s substantive arguments are

meritless.    Essentially, he claims that the court focused on only his criminal

history and the gravity of his offenses, and ignored other factors such as his

learning disability, low I.Q., and rehabilitative needs.                According to

Appellant, the court did not impose an individualized sentence, and the

aggregate term fashioned            by the court    was “clearly unreasonable.”

Appellant’s Brief at 18.3

       In rejecting Appellant’s sentencing challenge, the trial court initially

concluded that he had failed to present a substantial question for our review.

For the reasons stated supra, we disagree. However, the court went on to

provide an alternative analysis of the merits of Appellant’s claims, finding his

arguments unpersuasive. See TCO at 10-17. Having reviewed the court’s

thorough and well-reasoned analysis in this regard, we conclude that it

adequately     addresses     the    arguments    Appellant   presents    on   appeal.

Accordingly, we adopt that portion of the trial court’s assessment of

Appellant’s sentencing claim as our own, see id., and we deem his first

issue meritless for the reasons set forth therein.

____________________________________________


3
 Appellant also avers that the court failed to state adequate reasons for the
sentence it imposed. However, we will not review this claim, as it was not
presented in Appellant’s Rule 2119(f) statement.




                                           -8-
J-S44007-17



       Likewise, the trial court provides an accurate analysis of Appellant’s

remaining two issues, in which he challenges the sufficiency and weight of

the evidence to sustain his convictions. See id. at 17-20. We conclude that

the court’s discussion disposes of the arguments Appellant raises herein.4

Therefore, we also adopt that portion of the trial court’s decision as our own,

and reject Appellant’s second and third issues on the grounds set forth

therein.

       However, we are compelled to sua sponte vacate an illegal aspect of

Appellant’s sentence, namely, the portion of the sentencing order deeming

him an SVP. See Commonwealth v. Butler, No. 1225 WDA 2016, *6 (Pa.

Super. filed Oct. 31, 2017) (concluding that the issue discussed, infra,

____________________________________________


4
  However, we add a brief note to the trial court’s analysis of Appellant’s
challenge to the sufficiency of the evidence to support his conviction of
attempted rape. In his brief to this Court, Appellant focuses his sufficiency
argument on contending that “[t]here was no testimony that [his] penis was
ever near [the victim’s] vagina.” Appellant’s Brief at 20. However, C.Q.
testified that when she saw Appellant on top of M.R., “it looked like he was
trying to put his penis inside her vagina.” N.T. Trial, 3/18/15, at 46. C.Q.
also testified that M.R. was on her back with Appellant on top of her, and his
pants and underwear were down to his ankles. Id. M.R.’s pants were down
to her knees and her underwear was ripped.             Id.   While Appellant
acknowledges C.Q.’s testimony, he claims it was insufficient to support his
rape conviction because the victim, M.R., did not herself testify that
Appellant “was trying to force his penis inside of her.” Appellant’s Brief at
21. We disagree. C.Q.’s eyewitness account of the incident was adequate
for the factfinder to conclude, beyond a reasonable doubt, that Appellant
was attempting to force his penis into the victim’s vagina while he was
naked on top her. Moreover, any difference between C.Q.’s testimony and
M.R.’s goes to the weight of the evidence, not the sufficiency. Therefore,
Appellant’s argument in this regard is meritless.



                                           -9-
J-S44007-17



implicates the legality of a defendant’s sentence).       In Commonwealth v.

Muniz, 164 A.3d 1189 (Pa. 2017), our Supreme Court held that the

registration requirements under SORNA constitute criminal punishment, thus

overturning prior decisions deeming those registration requirements civil in

nature. Id. at 1218. On October 31, 2017, this Court ruled that,

       since our Supreme Court has held [in Muniz] that SORNA
       registration requirements are punitive or a criminal penalty to
       which individuals are exposed, then under Apprendi [v. New
       Jersey, 530 U.S. 466 (2000),] and Alleyne [v. United States,
       133 S.Ct. 2151, 2163 (2013)], a factual finding, such as whether
       a defendant has a “mental abnormality or personality disorder
       that makes [him or her] likely to engage in predatory sexually
       violent offenses[,]” 42 Pa.C.S.[] § 9799.12, that increases the
       length of registration must be found beyond a reasonable doubt
       by the chosen fact-finder. Section 9799.24(e)(3) identifies the
       trial court as the finder of fact in all instances and specifies clear
       and convincing evidence as the burden of proof required to
       designate a convicted defendant as an SVP. Such a statutory
       scheme in the criminal context cannot withstand constitutional
       scrutiny.

Butler, No. 1225 WDA 2016, at *11.          Accordingly, the Butler panel held

that 42 Pa.C.S. § 9799.24(e)(3) is unconstitutional. Id. at *11-12.

       In light of Butler, we are compelled to conclude that the portion of

Appellant’s sentencing order deeming him an SVP is illegal. See id. at *12.

Accordingly, we vacate only that aspect of Appellant’s judgment of sentence,

and remand his case for the trial court to determine under what tier of

SORNA Appellant must register, and to provide him with the appropriate

notice of his registration obligations under 42 Pa.C.S. § 9799.23. See id. at

*13.



                                      - 10 -
J-S44007-17



     SVP Order reversed.     Judgment of sentence affirmed in all other

respects. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/21/2017




                                  - 11 -
                                                                                                     Circulated 11/02/2017 02:14 PM




                                                                                                                ALE.
        IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY                                                       Nov    1   6 2016
                   FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                             CRIMINAL TRIAL DIVISION                                                      Cal    Appeals Unit
                                                                                                     First Judicial District
                                                                                                                             of P


COMMONWEALTH OF PENNSYLVANIA                      )    PHILADELPHIA COUNTY
                                                       COURT OF COMMON PLEAS
                                                  ))
VS.
                                                  )    NO. CP-51-CR-0013380-2013
                                                  )    NO. CP-51-CR-0013381-2013
HECTOR GONZALES                                   )

                                                  )                 CP-51-CR-0013360-2013
                                                                                            Comm v Gonzales,
                                                                                                             Hector G.
                                                  )                                     01:rron




                                                                        1111111,11,161,111,16111111,111

                                              OPINION

       Appellant, Hector Gonzales, as the above -named Defendant, seeks review of the Order and

Judgment of Sentence, imposed on July 31, 2015, by the Honorable Anne Marie B. Coyle, Judge

of the First Judicial District Court of Common Pleas, The Appellant asserts within the combined

Statements of Matters Complained of on Appeal Pursuant to Pa. R. P. 1925(b) filed in both above -

captioned matters that:

       1) in its  imposition of consecutive sentences, the Trial Court did not properly
        consider the general sentencing guidelines provided by the legislature of
        Pennsylvania; (2) The Trial Court sentenced the Defendant based solely on the
        seriousness of the offenses and failed to considered all relevant factors; (3) The
        sentence imposed is not consistent with the gravity of the offense as it relates to the
        impact on the life of the victim and the community, as well as the Defendant's
       rehabilitative needs; (4) the sentence is manifestly excessive in that it is grossly
       proportionate to his crime, particularly in light of the facts surrounding the criminal
       episode and his background; (5) the judge failed to provide adequate reasons on the
       record for the sentence; (6) the verdict was against the weight of the evidence; (7)
       the evidence was insufficient as a matter of law to convict the Defendant of
       Criminal Attempt- Rape Forcible Compulsion; and (8) the Trial Court failed to
       sustain or overrule two objections.
PROCEDURAL HISTORY

       The Defendant, Hector Gonzales was arrested and charged with Criminal Attempt- Rape

Forcible Compulsion under 18    § 901 §§    Al, graded as       a   Felony of the First Degree; Unlawful

Restraint- Serious Bodily Injury under 18    §   2902 §§     Al, graded    as a Misdemeanor       of the First

Degree; Indecent Exposure under 18   §   3127 §§ A, graded as a Misdemeanor of the Second Degree;

Recklessly Endangering Another Person under 18         §   2705, graded as a Misdemeanor of the Second

Degree; Criminal Attempt- IDSI Forcible Compulsion under 18             § 901 §§   A, graded as a Felony of

the First Degree; Criminal Attempt- Sexual Assault under            18 § 901 §§ A,     graded as a Felony of

the Second Degree; and Indecent Assault Forcible Compulsion under 18               §   3126 §§ A2, graded as

a Misdemeanor of the Second Degree. The arrest stems from events that occurred in the city and

county of Philadelphia on July I, 2013 around 11:00 p.m., during which the Defendant sexually

assaulted two women who were strangers to him, near a park area in the Kensington Section of

Philadelphia. Following a preliminary hearing, the Bills of Information related to offenses

involving the complainant victim                   were listed after arraignment under CP8-51-CR-

0013381-2013 and the Bills of Information related to the offenses related to the complainant
   Q.
      were listed after arraignment under CP#-51-CR-0013380-2013.

       On March 17, 2015, jury selection began before the Honorable Anne Marie B. Coyle Judge

of the Court of Common Pleas for the First Judicial District. The case          in     chief presented by the

Commonwealth of Pennsylvania, by and through its Assistant District Attorney Lindsay Kenney,

began March 18, 2015 and was completed on March 19, 2015. The Trial Court entered the Order

denying the Motion to Judgement of Acquittal orally filed on behalf of the Defendant, by and

through his trial counsel Gina Capuano, on March 19, 2015.



                                                   2
                                                                         on March 19, 2015. The
        After due deliberation, the jury verdicts of guilty were entered
                                                                     (I) Criminal Attempt- Rape
empaneled jury found the Defendant guilty of five criminal offenses:

Forcible Compulsion under 18        § 901 §§   Al; (2) Criminal Attempt- IDSI Forcible Compulsion
                                                                             18 § 2902 §§   Al; (4)
under 18   § 901   §§ A; (3) Unlawful Restraint- Serious Bodily Injury under

                                   3127 §§ A; and (5) Indecent Assault Forcible Compulsion under
                                                                                                 18
Indecent Exposure tinder 18    §


§   3126 §§ A2.
                                                                    Coyle, Judge of the Court of
         As the presiding trial jurist, the Honorable Anne Marie B.

Common Pleas for the First Judicial District, directed the completion
                                                                      of Presentence Evaluations

                                                                as well as a Mental Health
by the First Judicial District Probation and Parole Department,

                                                        retained new trial and appellate
Evaluation, and a Megan's Law Assessment. The Defendant

counsel, Nino Tinari, Esquire. On July 31, 2015, after review of all
                                                                     completed presentence reports

and consideration of all relevant data submitted concerning the
                                                                Defendant at a full and fair

                                                                 following sentences:
sentencing hearing, the Honorable Anne Marie B Coyle imposed the
                                                                                   under 18
         Count 1- Criminal Attempt- Rape Forcible Compulsion (Victim-
         § 901 §§ Al Minimum ten (10) years state term
                       :
                                                       of confinement to Maximum twenty (20)
         years state term of confinement;
                                                                                         under 18 §
         Count 2- Unlawful Restraint- Serious Bodily Injury (Victim-
         2902 §§ Al: Minimum one and one half (1.5) years state term
                                                                        of confinement to Maximum
         five (5) years state term of confinement to run concurrently to
                                                                         Count 1;

                                                          ) under 18 § 3127 §§ A: Minimum one
         Count 3- Indecent Exposure (Victim-
         (1) year state term of confinement to Maximum (2) years
                                                                 state term of confinement to run
         concurrently to Count 1;
                                                                               I   'V
                                                                                     ) under 18
         Count 5- Criminal Attempt- IDSI Forcible Compulsion (Victim-
         § 901 §§ A: Minimum ten (10) years
                                               state term of confinement to Maximum twenty (20)
         years state term of confinement to run consecutively to Count
                                                                       1;
                                                                      e.
                                                                          under 18 § 3126 §§
         Count 7- Indecent Assault Forcible Compulsion (Victim-
                                                                       two (2) years state term
         A2: Minimum one (1) year state term of confinement to Maximum
         of confinement to run consecutively to Counts and 5.
                                                           1




                                                     3
                                                          of twenty one (21) years state term of
       The aggregate sentence imposed totaled a minimum
                                                                                            also
                                             years state term of confinement. The Court
confinement to a maximum of forty two (42)
                                                  Violent Predator; directed the Defendant to
determined the Defendant was a Tier III, Sexually
                                                   the Defendant to stay away from the victims;
comply with all Megan's Law requirements; ordered
                                               screens and treatment; and ordered the Defendant
required Sex Offender Supervision; random drug

avail himself of any vocation and education
                                            trainings offered during the term of confinement.

                                                               filed a Post Sentence Motion. This
        On August 4, 2015, counsel on behalf of the Defendant,

                                                On December          2015,   the Defendant filed a timely
Motion was denied on December 4,        2015.                   4,



                                                                     On December 21, 2015, this Court
Notice of Appeal to the Superior Court of Pennsylvania.

        the Defendant to file a concise Statement of Errors Complained of on Appeal pursuant to
ordered
                                                     requested an extension of time, which was
Pa.R.A.P. 1925(b). On January 12, 2016, counsel
                                            an extension for thirty (30) days. On February
                                                                                           11,
granted on the same day. This Court granted
                                             Appeal was filed on behalf of the Defendant.
2016, a Statement of Errors Complained of on

FACTUAL HISTORY
                                                                                         Gonzales,
        At trial, the Commonwealth     of Pennsylvania established the Defendant, Hector
                                   C,.°
                                                                      who were strangers to him, as they
 initially accosted two females,
                                                      Streets in Philadelphia on July 1, 2013, around
 walked through a park area near 3rd & Cumberland
                                                                                      from her friend
 11 p.m. Specifically,
                                    testified that she received a phone call earlier
                                                                         stopped at         house and
              asking to meet for a night out at a local pub.
                       c                                                                 ingest two Xanax
 waited downstairs.                iutirer testified that she witnessed
                                                                                             where
                                                friends walked to a bar in the neighborhood,
 pills, which were prescribed to her. These two
                                                                                            a bike
           drank a shot and a beer. When  these two females later passed the bar, a male on
 they each

                   along North Fourth Street.            unequivocally identified this male in the
 approached  them


                                                     4
                                                    explained that the Defendant kept following
courtroom as the Defendant Hector Gonzales. She
                                                 a cigarette, to whic            quickly replied
them as they walked through the park. He offered

"no, and get away."
                                                                        to have fun," and repeatedly
                      estified the Defendant stated that he was "trying
                                                      and made repeated foul mouthed sexual
suggested that he and they engage in a "threesome,"
                                               entreaties to leave them alone and their clear
requests. The Defendant ignored the women's
                                                      sexual advances.                     informed him
statements that they were not interested in his crude
                                                  any males. The Defendant then became aggressive
that they were not interested in the attention of
                                                     her hands and breast. (N.T. 03/18/2015, pp. 29-
with her friend MN, and began touching her on

37).
                                                      "talking dirty," and stating that he wanted
        The Defendant continued to badger both women,
                                                             C
                                               up to               grabbed her shoulder, felt her breast.
to have a three-way orgy. The Defendant walked

She immediately pushed him away.           MI stated      to him to leave   am alone because she was
                                                   clearly voiced to him that he should leave the
messed up because of the Xanax and alcohol. She

area entirely and go to where the prostitutes were
                                                   available...I started walking away, towards
                                                                 returned with her friends, she witnessed
the bar, to alert her friends to help them. When
                                                                 me.
                                              on top of                as she lay on the ground struggling
 the Defendant, with his pants down, pounding

                                             and her two friends    "0" and "Black" started pulling the
 and yelling to fend him off of her.
                                                                         ankles.                pants had
 Defendant off of          ;   the Defendant's underwear was down to his
                                                                                           pp.
 been pulled dawn her legs and her underwear
                                             ripped. She was hysterical. (N.T. 03/18/2015,

 43-46).
                                                                                 recollection of events
                           testimony at trial strongly corroborated her friend's
                 t




                                                      C.Q.
                                 estified that when               walked away to meet their friends, the
 that evening.


                                                      5
Defendant jumped on top of her and pulled to the ground in a
                                                             park area. She testified that the

                                                                  in her mouth and tried to go in
Defendant pulled out his penis, and attempted to insert his penis

her pants.   la     testified that she had a few drinks that night, as well as her prescribed
                                                                                              Xanax,

                                                                              did not prohibit her
and had subsequent difficulties with her memory, but that those circumstances

from recalling material facts as she recalled events of that night.

                        also testified that the Defendant, while his hands were in her pants, ripped
             m+R.


                                                                       flailing her arms to try to
her underwear and pulled them down to her ankles. She clearly recalled
                                                            the Defendant off           of her as she
stop him and yelling. When her friends returned they pulled
                                                                                   C     IS
                                                             naked, with                       friends
struggled on the ground. The Defendant ran down an alley way
                                                                                    reporting a
in hot pursuit.   When the Defendant entered a house, multiple people called police

naked man running down the street being chased by a group
                                                          of people and observing a naked man

                                                                            03/18/2015, pp. 83-85).
sitting on front steps of a home in the 2600 block of Orianna Street. (N.T.
                                                                                 to a radio call that
        Philadelphia Police Officer Jason Judge credibly testified to responding
                                                                          Upon arrival he was
dispatched him to the area of 3'd and Cumberland Streets in Philadelphia.
                                                              the Defendant approached them
approached by two upset women who had excitedly reported that
                                                               his unwanted advances. They and
and attempted to sexually assault them after being rebuffed by
                                                                   of Orianna Street as the path
other person directed the responding officers toward the 2600block

of the Defendant's flight.
                              testified that the complainant,                ,   told him that a male,
        Police Officer Judge,
                         v.

who was a complete stranger to her sexually assaulted her by
                                                             attempting to penetrate her vagina,

                                                                then attempted to place his penis in
and that she had tried to fight him. She told him that the male

                                                  Illihiljelothes were disheveled, ripped    and torn,
her mouth. Officer Judge further testified that

                                                                  pp. 130-136).
and that she appeared to be visibly distraught. (N.T. 03/18/2015,



                                                   6
                                                                      Police SWAT Team,
       Philadelphia Police Officer Cyprian Scott, of the Philadelphia
                                                          a male barricaded inside 2628 North Orianna
testified that he and his team were called to a report of
                                                     and one-half from the reported sexual assault
Street, Philadelphia, PA., which was located a block
                                                             at the house, he was informed the male
location. Officer Scott further testified that upon arriving
                                                    a sexual assault. The male inside, later
inside had been chased by citizens after committing
                                                         members to peaceably exit the property
idehtified as Hector Gonzales, rebuffed requests by SWAT
                                                   entry into the property. Officer Scott stated
for three hours before the SWAT team made forcible

that orders were given to break through the front door.
                                                               the first floorland heard the Defendant
        Once inside the residential property, officers cleared
                                                         yelled to the officers that he would he
moving upstairs in a second floor bedroom. The Defendant
                                                               Per direction, the Defendant placed
would come down the stairs as long as his dog was unharmed.
                                                          remained unharmed. The Defendant was
the pit bull terrier into a second floor bedroom where he
                                                            were made from the victims. (N.T.
finally subdued and arrested after positive identifications

03/18/2015, pp. 145-147).

DISCUSSION
                                                                                      (1)        in its
        In his Statement   of Matters Complained of on Appeal, the Defendant asserts:
                                                     did not properly consider the general
imposition of consecutive sentences, the Trial Court
                                                   State Legislature; (2) the Trial Court
sentencing guidelines provided by the Pennsylvania
                                                        of the offenses and failed to consider all
sentenced the Defendant based solely on the seriousness
                                                             with the gravity of the offense as it
relevant factors; (3) The sentence imposed is not consistent
                                                    and the community, as well as the Defendant's
 relates to the impact on the life of the victim
                                                        manifestly excessive in that it is grossly
 rehabilitative needs; and (4) the sentence is

 disproportionate to his crime, particularly in light
                                                      of the facts surrounding the criminal episode and



                                                   7
his background. The Defendant also claims the
                                              Judge failed to provide adequate reasons on the

record for the sentence.
                                                                   was against the weight of the
        Additionally, the Defendant claims that the guilty verdict
                                                      matter of law to sustain a conviction for
evidence, and that the evidence was insufficient as a
                                                                901 §§   Al), because the evidence was
Criminal Attempt- Rape Forcible Compulsion (18
                                                            §


                                                        in sexual intercourse with a complainant.
insufficient to prove the Defendant attempted to engage
                                                               two evidentiary objections. However
Lastly, the Defendant asserts that the Court failed to sustain
                                                     in light of the proceedings, and do not warrant
these two claims lack any merit, were harmless error

any relief.
                                                                       without a more
        I.      Defendant's excessive sentence claim is not appealable
                specific claim for the source of error.
                                                              excessive fails to even raise a
        The Defendant's claim that the imposed sentences were
                                                            no additional and more specific
substantial question necessitating appellate review because
                                                            argument. The Court's analysis begins
violation of the sentencing code was cited to support the
                                                      the discretionary aspects of sentencing is not
with the established premise that appellate review of
                                                                                 when a sentencing
automatic. Cow.   v.   Mastromarino, 2 A.3d 581, 585 (Pa. Super. Ct. 2010). Only
                                                         provision of the Sentencing Code or an
claim sets forth the manner in which either a particular
                                               process was violated, does a claim of
 underlying fundamental norm of the sentencing
                                                            ilifouzon, 812 A.2d 617, 627(Pa. 2002).
 excessiveness present a substantial question. Corn.   v.


                                                                 to the sentence does a party have a
         Therefore, only when there is a substantial question as
                                                         Stat. Ann.            §   9781 (West). If such a
 right to appeal the court's determination. 42 Pa. Cons.
                                                            given great deference during the appeal,
 substantial question exists, the sentencing court is still
                                                      an abuse of that discretion. Cam,          v.   Walls,
 and the sentence can only be overturned if there was
                                                    is given broad discretion to determine the
 926 A.2d 957, 961 (Pa. 2007). The sentencing court

                                                   8
aspects of a sentence because it is in the best position to evaluate the facts in that individual

circumstance. Cart,   v.   Mouzon, 812 A.2d 617, 620 (Pa. 2002).

        A blanket claim of excessiveness, with no further allegations, does not create a qualifying

substantial question for appellate review. Id. For instance, the defendant in Mouzon claimed that

he had been improperly denied an appeal based on the fact that his sentence, while large, was

within the statutory limit. Id. at 624. While the Supreme Court remanded the case because it

disagreed with the Superior Court's reasoning concerning the statutory limits, it specifically held

that "bald allegations of excessiveness" are not sufficient to create a substantial question because

they do not identify the manner in which a sentencing provision or fundamental norm were

violated. Id. at 627; See also Cont.   v.   Titus, 816 A.2d 251, 255-56 (Pa. Super. Ct. 2003) (explaining

that the appeal in that case only presented issues as to whether the sentence was too harsh, which

it considered a bald allegation that the sentence was excessive that did not create a substantial

question that entitled the defendant to an appeal).

       Moreover, a specific reason as to why an excessive sentence is improper, beyond it simply

being excessive, is needed to raise a substantial question. Cont.     v.   Raven, 97 A.3d 1244, 1253 (Pa.

Super. Ct. 2014) appeal denied, 105 A.3d 736 (Pa. 2014); Coin.              v.   Sheller, 961 A.2d 187, 190

(Pa. Super. Ct. 2008). For instance, the defendant in Raven claimed that the sentencing court failed

to consider pertinent mitigating factors when formulating his sentence. Id. at 1248. The Superior

Court considered this additional and specific allegation to be sufficient to raise a substantial

question and allowed the appeal to go forward. Id. at 1253; See also Com.            v.   Riggs, 63 A.3d 780,

786 (Pa. Super. Ct. 2012) (determining that the failure to consider the relevant sentencing factors

laid out in section 9721 of the Pennsylvania Code (the need to protect the public, gravity of the

crime, and the defendant's rehabilitative needs) presented a substantial question).
                                Sheller, 961 A.2d 187, 190 (Pa. Super. Ct. 2008)
                                                                                 the defendant
       Similarly, in Com.   v

                                                               recommended range without the
claimed that the sentence was improper because it exceeded the
                                                                 961 A.2d at 189 (Pa. Super. Ct.
sentencing court adequately stating its basis for the deviation.

2008). The Superior Court considered this claim, which
                                                       went beyond simply claiming the sentence

                                                             Id. at 190; See also Com.         v.   Kenner,
was excessive, to be enough to raise a substantial question.
                                                         for the appellant for an overly lenient
784 A.2d 808, 811 (Pa. Super. Ct. 2001) (granting appeal
                                                            was raised by the sentencing court's
sentence only after determining that a substantial question
                                                                without sufficient explanation).
issuing of a sentence thirty months below the recommended range
                                                                     combined claims are simply
       In the instant case, no appeal is allowed because Defendant's

                                                          the sentences imposed. In the Statement
bald assertions based upon disagreement with the terms of
                                                            that the sentence imposed was is
of Matters Complained of on Appeal, Defendant merely states
                                                              to his crime, and that the trial court failed
manifestly excessive in that it is grossly disproportionate

to consider the general sentencing principles,
                                               failed to adequately examine the Defendant's

                                                     failed to place adequate reasons on the record
background, character, and rehabilitative needs, and
                                                                                    how the
for the sentence given.     The Defendant makes no additional concrete claims about

excessive sentence was a result of an error by the trial court.
                                                                    raised by the Defendant's
        Even if is determined that there was a substantial question
                                                           sentencing factors, his argument does not
allegation that the trial court failed to consider certain
                                                           In this case, this Court incorporated and
meet the abuse of discretion standard of appellate review.
                                                         and detailed sentencing data concerning the
specifically referenced its analysis of all the relevant
                                                    and oral arguments proffered by all parties
Defendant's background presented within the written
                                                    that the trial court had directed to be
and including the Presentence Investigative Reports

completed.


                                                   10
                                                                   was required to impose a
       In addition, all parties and counsel agreed that this Court

                                                                    to the statute as a "Second
minimum of ten years of incarceration to the lead felonies pursuant
                                                                 ranges of sentences pursuant
Strike" offense. This Court expressly considered the recommended
                                                             by the Pennsylvania Commission on
to the guidelines for sentencing and resentencing as adopted
                                                                   case involved a sexual assault of
Sentencing as it related to each individual charge. As the instant
                                                        evidentiary hearing were properly
two females, a Megan's Law Assessment and corresponding
                                                                      reasons for the sentences from
conducted. On the record, this Court specifically incorporated stated
                                                             factors on the record before
the evidentiary hearing and provided reasonable supplemental

imposing sentence.
                                                                  to concurrent terms of
       The imposition of consecutive terms of sentence as opposed
                                                                    allow the granting of allowance
sentence is not viewed as raising a substantial question that would

of appeal in our Commonwealth. Cont.       v.   Marts, 889 A.2d 608 (Pa. Super. 2005). Pursuant to 42

                                                                                   right to impose the
Pa. C.S.A.   §   9781(d) (1) and (3), this Court was well within its discretionary
                                                                     reasonable discretion when     it
sentences consecutively. In the instant matter, this Court exercised
                                                                   for which the jury rendered
determined that sentences for three of the seven criminal offenses
                                                                        standard sentences upon the
verdicts of guilt, should run consecutively. Individualized consecutive

Defendant were imposed only after careful consideration
                                                        of all relevant sentencing factors

                                                           the gravity of the offense, the
including the paramount need for protection of the public,

Defendant's prospect for rehabilitation.         Hence, the Defendant has not raised any substantial

                                                                   or contrary to a fundamental
question that the consecutive sentences imposed were inappropriate

norm underlying the sentencing code.
                                                                 factors does not present a
        The weight given by the Court to the relevant sentencing
                                                               about this Court's determination of
substantial question because this simply raises a disagreement


                                                      11
facts and the weight of factors. Again, the sentencing court is given
                                                                      broad discretion in formulating

a sentence, with no   automatic right of review available. Corn.     v.   Mastroenarino, 2 A.3d 581, 585

                                                              is a substantial question as to a
(Pa. Super. Ct. 2010). An appeal can only be granted if there
                                                                  Pa. C.S.A.            9781; Mouzon, 812
violation of a specific sentencing code or a fundamental norm. 42
                                                                                    §


A.2d at 627.

          In the instant case, the Defendant generally avers that this Court
                                                                             did not give enough weight

to the "particular circumstances    of the offense and the character of the defendant." Although             a


                                                                           be a substantial question,
claim that a sentencing court failed to consider a mitigating circumstance
                                                                   create a substantial question,
mere disagreement, however, about how factors are weighed does not
                                                                      the relevant facts. Coin.
since it is the sentencing court's role to appraise the importance of
                                                                                                            v.


                                                               105 A.3d 736 (Pa. 2014); Corn.
Raven, 97 A.3d 1244, 1253 (Pa. Super. Ct. 2014) appeal denied,
                                                                         (Feb. 17, 2015).
v.   Zirkle, 107 A.3d 127, 133 (Pa. Super. Ct. 2014), reargurnent denied
                                                                         mitigating circumstance
          The Defendant Hector Gonzalez does not pinpoint any particular

                                                         in essence, amounts to his disagreement
as not being considered. As written, this blanket claim,

                                                            the record abundantly dispels any
with the recorded findings of fact by this Court. Moreover,
                                                                    all relevant mitigating and
notion that this trial court did not thoroughly assess and identify

aggravating factors from ample evidence presented.
                                                                  regard for:           "(1) the nature and
          In reviewing the record, the appellate court shall have

                                                                 of the defendant; and            ...   (3) the
circumstances of the offense and the history and characteristics
                                                                     9781 (d) (1) and (3). At sentencing,
findings upon which the sentence was based." 42 Pa. C.S.A.       §


the trial court was keenly concerned that previous attempts to
                                                               rehabilitate the Defendant had failed.

This was evidenced by recitation of facts contained within the
                                                               Presentence Reports Investigative

                                                               (N.T. 07/31/2015, pp. 29-31).
Reports prepared by the Adult Probation and Parole Department.



                                                    I2
                                                                                      facility,
The Court noted on the record that the Defendant absconded from a juvenile commitment

had multiple narcotics convictions, and multiple convictions for violation of the
                                                                                  Uniform Firearms

Act.

                                                                                    agreed that
        At the very beginning and at the end of the sentencing hearing, all parties

                                                                               lead offenses
Mandatory Minimum Sentences of ten years of confinement must be imposed to the
                                                                                    this Court
because the Defendant qualified per statute as Second Strike Offender. In addition,
                                                                                          Reports.
amply addressed the guideline calculations presented within the Presentence Investigative
                                                                            each offense and
Each attorney agreed with the computation of the Offense Gravity Scores for
                                                                                  from the
Prior Record Score as tabulated pursuant to the guideline recommendations derived
                                                                                  per charge
Pennsylvania Commission on Sentencing. Indeed, each period of confinement imposed
                                                                             and statutory
fell squarely within the agreed upon recommended guideline sentencing ranges

mandatory minimum requirements.
                                                                                        the crime's
       A reasonable sentence is one that includes examination of the public protection,
                                                                                               Code.
gravity, and the defendant's rehabilitative needs, as listed in section 42 of the Pennsylvania

42 Pa. Cons. Stat. Ann.   §   9721 (West); Walls, 926 A.2d at 964. Additionally when the sentencing

court has reviewed a presentence report,              it is   presumed that the court has considered the

information it contains. Can.     v.       Boyer, 856 A.2d 149, 154 (Pa. Super. Ct. 2004) affd 891 A.2d

1265 (Pa. 2006). Facts can be considered, pursuant to            §   9721(b)'s sentencing requirements, even

if the facts are subsumed within the guideline recommendation.               Corn.   v.   Sheller, 961 A.2d 187,

192 (Pa. Super. Ct. 2008). This Court explicitly and implicitly touched
                                                                        upon all                 of the required

considerations of 42 Pa. C.S.A.        §   9721(b) when it considered the Defendant's background, current

situation and the nature of the crimes he committed.




                                                         13
                                                                  this Court explicitly incorporated
         Within the outlined reasons for imposition of sentences,
                                                      Ziv. Specifically, regarding the Megan's
the findings and conclusions presented by Dr. Barbara
                                                              from Dr. Barbara Ziv concerning the
Law evidentiary hearing, the Court heard credible testimony
                                                        predator ("SVP") in Pennsylvania. Dr. Ziv
criteria used to classify someone as a sexually violent
                                                            issue of a mental abnormality or personality
testified that there are two prongs to the statute: (1) the
                                                  and (2) the issue of predatory behavior. Predatory
disorder that renders someone likely to reoffend;
                                                         whom a relationship had been initiated or
behavior is an act directed at a stranger or person with
                                                           Additionally, Dr. Ziv testified that to
established, in order to promote or support victimization.
                                                       the offender and victim are addressed. Dr.
classify an individual as SVP, characteristics of both
                                                 for the criteria of SVP. (N.T. 07/31/2015, pp.
Ziv concluded that the Defendant met both prongs

8-15).

         Dr. Ziv also testified that, in her expert opinion, Mr.
                                                                 Gonzales meets the criteria for

                                                                                       behavior to
Antisocial Personality Disorder,      She explained that it constitutes deviant sexual

become aroused or interested by a stranger in a
                                                violent act. Mr. Gonzales displayed a pattern of

disregard for and violation of the rights of others.
                                                     This pattern of behavior was firmly established

                                                      Dr. Ziv had reviewed. As an adult, Hector
within the Defendant's reported criminal history that
                                                      arrests, resulting in multiple convictions
Gonzales had accumulated fourteen (14) adult criminal
                                                   which he was adjudicated delinquent twice. Dr.
for serious offenses and three juvenile arrests in

Ziv noted the impulsivity ingredient present for
                                                 niany of Mr. Gonzales's crimes. Additionally, the

                                                         and reckless disregard for the safety of self
 irritability and aggressive nature of crimes committed,

and others was also highlighted.

          Lastly, Dr. Ziv testified to how Mr. Gonzales
                                                        met the predatory behavior prong of the

                                                were strangers; Mr. Gonzales did not seem to
 statute. She cited the fact that the two women


                                                    14
                                                             he became aggressive in a sexual
previously plan the attack;, and when the women refused him,
                                                                  to be interviewed, Dr. Ziv had
nature. It was also remarked that, although Mr. Gonzales declined
                                                            Court expressly stated its agreement
sufficient information to provide her conclusions. Id. This
                                                         that Mr. Gonzalez met the criteria of a
with Dr. Ziv's findings and conclusions when determining

Sexually Violent Predator as identified in the statute.

       On the record this Court specified that it reviewed all
                                                               relevant data sources supporting its

decision and recited specific reasons for each finding as follows:

                                  Whether or not the offense involved multiple victims:
                                                                                          it
                "...Factor No.   1,
                                                                                       who
                                                                 both of those victims
       did. It was all in one day and it was a very long day for
                                                           demonstrated   to any reasonable
       were both strangers to this Defendant and clearly
       human being they had no interest in Mr. Gonzalez.

                No. 2: Whether or not this individual exceeded the
                                                                         means necessary to
                                                                     the means necessary to
        achieve the offense: I find that he specifically exceeded
                                                                   and assaulted
        achieve this offense in the manner in which he restrained
                                                                          relationship to the
        after he groped the other young lady and was violent. The
                                                                          of the victims were
        individuals -to the victims -they were strangers to him. The ages
        28 and 30 years old.

                                                                       unusual amount of
                Factor No. 6: Whether or not this offense displayed an
                                                            his crime: I note his extreme
        cruelty by th- -f9ndant during the commission of                                of
        cruelty to              and I remember her because she was someone who was
        very limited ability both physically and mentally.
                                                                       not noted in the
               Mental capacities of the victim -actually while its                     It
                                                                       and of the two,
        assessment, I did have the opportunity to observe both victims
                                                                     to Mr. Gonzalez.
               had considerable deficits that were easily observable
                                                                         the moment, I'll come
                The other young lady -whose name escapes me for
                                                                 is the reason why this offense
        back to that- had a lot more strength to her, and indeed
                                                                    Pgs. 28-31.)
        ended, because she enlisted help." (N.T. July 31, 2015


                                                                          relevant data contained
        In   addition, this Court incorporated its thorough review of the
                                                   Assessments. This Court referenced the
within the Pre -Sentence Reports and Mental Health
                                                               substances, including heroin and
 Defendant's documented addiction to multiple illegal narcotic


                                                   l5
                                                                           that multiple failed
marijuana beginning the age of fifteen years old. This Court also remarked

efforts to rehabilitate the Defendant following the two adjudications
                                                                      of delinquency. This Court

                                                                   by a Court into the Don
also noted that in 1991, the Defendant had been formerly committed
                                                                           and that he absconded
Guanella Juvenile Program to address his addictions and delinquency causes
                                                                            family reported that the
from the program after a short stay of only thirty (30) days. His immediate

Defendant as a juvenile could not be controlled. As a result of his
                                                                    historical non-compliance one

of his later juvenile arrests resulted in adult certification.
                                                                                adjustment to
        Overall, this Court was cognizant of the fact that the Defendant's poor
                                                                       accumulated fourteen
supervision as a juvenile continued through adulthood. As an adult, he
                                                             for serious offenses including
arrests resulting in eight convictions with five commitments
                                                                   had violated previously
Robbery, Carrying A Firearm, Delivery of Controlled Substances. He
                                                                   He hampered efforts of
imposed terms under parole or probationary periods of supervision.
                                                                   terminated the interview
evaluators to understand him. For instance, the Defendant abruptly
                                                                  this investigator was unable to
conducted by the Pre -Sentence Investigator "after realizing that
                                                                 (See Excerpt Page 2 of the Pre-
provide him with specific information regarding his sentencing."

Sentence Report)

        This Court reasonably concluded that the Defendant, who was
                                                                    thirty-nine years of age,

demonstrated a high likelihood or reoffending and a high rate
                                                              of sexual recidivism and

                                                                       the sentences. This Court
incorporated this finding within the multiple reasons for the imposing
                                                                              circumstances from
formally supplemented its detailed findings with its review of the underlying

the Defendant's prior conviction for Robbery which had formed
                                                              the basis for imposition of the

mandatory minimum ten year sentence on the record as follows:




                                                     16
                                                      sir, I do incorporate all the findings
                   "... Mr. Gonzalez, at this point in time,
                                                                 Law Assessment into the
        that I previously stated in reference to the Megan's
        consideration of my sentence.
                                                                             also reviewed the
                   I've reviewed all the information provided thus far. I've
                                                                 is a second strike. I supplement
        guidelines in this matter, as well as the fact that this
                                                         to the first strike, sir, the robbery, that
        my findings because I noted that with respect
        was also of a woman; a 40 -year old woman
                                                         whose unfortunate position was to be
        seated in her parked vehicle. She was greeted by
                                                                   you producing a firearm and
                                                                    your brains out." You were
        threatening to "Get off my fucking arm or I'll blow
        convicted after a waiver trial on May 23, 2000 for
                                                                that offense.

                                                                 your         future and the future
                 So I have a great deal of concern about you and
                                                                    I do find that your risk
         of the folks in Philadelphia when you are released because
                                                                   Pages 42-43.)
         of recidivism is extremely high." (See N.T. July 31, 2015
                                                            and succinctly referenced all relevant
         In short, this trial court thoroughly investigated
                                                          No abuse of discretion occurred.
sentencing factors before entering the Order of Sentence.

                                                                           present at trial.
         H.         The verdict was not against the weight of the evidence
                                                    the "jury verdict was against the weight of
         The Defendant next summarily contends that

the evidence" at trial. The Defendant does not
                                               specify which verdict at to which charge was

claimed to be insufficiently supported.
                                                           standard of review for weight of the
             The Supreme Court has set forth the following

evidence claims:
                                                                   claim appears to lie in ensuring
                "The essence of appellate review for a weight
                                                                     Where the record adequately
             that the trial court's decision has record support.
             supports the trial court, the trial court has acted
                                                                 within the limits of its discretion."


                                                                   A motion for a new trial based on
Corn.   v.   Roberts, 2016 Pa. Super 22, 133 A.3d 759, 770 (2016).
                                                    the evidence is discretionally determined by the
a   claim that the verdict is against the weight of
                                                       or a mere conflict in the testimony or because
trial court. A new trial should not be granted because
                                                   at a different conclusion. Rather, the role of the
the judge on the same facts would have arrived


                                                         17
                                                                                  so clearly of greater
trial judge is to determine that notwithstanding all the facts, certain facts are
                                                                           is to deny justice. Id.
weight that to ignore them or to give them equal weight with all the facts
                                                                                the evidence claim
        An appellate court's standard of review when presented with a weight of

is distinct from the standard   of review applied by the trial court. Appellate review of     a weight

                                                                                           the verdict
claim is a review of the exercise of discretion, not of the underlying question of whether

is against the weight   of the evidence. Commonwealth     v.   Clay, 619 Pa. 423, 64 A.3d 1049, 1054-

                                                                       to prevail on a challenge to
55 (2013) (citations and quotation omitted). In order for an appellant

the weight of the evidence, "the evidence must be so tenuous, vague and
                                                                        uncertain that the verdict

shocks the conscience of the court." Commonwealth              v.   Sullivan, 820 A.2d 795, 806 (Pa.

Super.2003) (citation omitted).

        In the instant case, the record clearly supports a conviction for all charges
                                                                                      including the

                                                                           sexually harassed
offense of Attempted Rape. As previously stated, the Defendant stalked and
                                                                            After repeated
two women who were strangers to him as they walked through a park at night.

requests by the women for the Defendant to leave them alone, as well as
                                                                        both women refusing to

                                                                                                     and
participate in a three-way orgy in public, the Defendant indecently assaulted
                              WV   14.
then violently attacked
                                                                                                   get
                     credibly testified that after her friend went across the street to the bar to
                                                                              into a nearby dark
help, Defendant suddenly jumped on top of her and dragged her onto the ground
                                                                                on the ground and
park area, pulled her clothes down to her ankles as he forcibly kept her pinned
                                                                                               testified
ripped her underWear, attempted to insert his penis into her mouth and bottom.
                                                                            with his pants down
that when she returned with aid, she saw the Defendant on top of her friend
                                                                      She observed
while her friend was yelling and vainly trying to get him off of her.

ripped and disarrayed clothing and tha                         was hysterical. She stated that it took



                                                   18
 multiple persons to get him off of her friend who was and remains a plainly observably disabled

 diminutive person.

         The victims' credible testimony was also corroborated by responding uniformed

 Philadelphia Police Officers who testified that the two distraught women immediately reported

 what had happened, and provided the direction of Defendant's flight. Officers noted that both
                                              116
 women were highly emotional and that                     appeared quite disheveled. The Defendant's

 response by ignoring the efforts and commands of police officers within the three hour standoff

 with the SWAT unit uniquely reflected his consciousness of guilt. The overall evidence introduced

 in this instant matter was far from tenuous, vague or uncertain that the verdict shocked the

 conscious of the court. To the contrary, the evidence was sufficiently compelling to support each

verdict of guilty for each charge.

        III.    The evidence presented at trial was sufficient to prove beyond a reasonable
                doubt that the Defendant, Hector Gonzales, attempted to engage in sexual
                intercourse with the complainant.

        The Defendant also contends that the evidence at trial was insufficient as a matter of law

to sustain a conviction of Criminal Attempt- Rape Forcible Compulsion (18 § 901 §§ A), because

the evidence was insufficient to prove that the Defendant attempted to engage "in sexual

intercourse with a complainant."     18 § 3121 §§ A.     In reviewing the sufficiency of evidence, an

appellate court considers "whether the evidence presented at trial was sufficient to establish all

elements of the crime beyond a reasonable doubt." Commonwealth            v.   Burton, 2 A.3d 598 (Pa.

Super. Ct. 2010).     The appellate court views all of the evidence and reasonable inferences

therefrom in a light most favorable to the Commonwealth as verdict winner. Id. Where there is

sufficient evidence to enable the trier of fact to find every element of the crime has been established

beyond a reasonable doubt, the sufficiency of the evidence claim must fail. Id. The evidence



                                                    19
     established at trial need not preclude every possibility of innocence and the fact-finder is free to

     believe all, part, or none of the evidence presented." Commonwealth       v.    Feliciano, 2013 Pa. Super

     117, 67 A.3d 19 quoting Commonwealth           v.   Stokes, 2011 Pa. Super 261, 38 A.3d 846, 853-854

     (2011) (internal citations and quotations omitted).

            In defining the crime   of rape,   18 Pa. C.S.A. 3121   provides: "a person commits a felony of

     the first degree when he engages in sexual intercourse with another person not his spouse: (1) by

     forcible compulsion; (2) by threat of forcible compulsion that would prevent resistance by a person

 of reasonable resolution. Criminal attempt         is defined by 18 Pa. C.S.A. 901(a): "a person      commits

 an attempt when, with intent to commit a specific crime, he does any act which constitutes a

 substantial step toward the commission of the crime." Commonwealth                 v.   Russell, 313 Pa. Super.

 534, 542, 460 A.2d 316, 320 (1983).

            In the instant case, the Defendant jumped on top      of the victim, pulled his pants down, and

 ripped her underwear down to her ankles. He further fondled her breast, and attempted to insert

 his penis into her mouth and vagina. The Defendant was only stopped when the victim's friends

 began pulling him physically pulling him off of her. "The substantial step test broadens the scope

of attempt liability by concentrating on the acts the defendant has done and does not any longer

focus on the acts remaining to be done before the actual commission of the crime." Commonwealth

v.    Gillian, 273 Pa. Super. at 589-90, 417 A.2d at 1205 (1980). Additionally, intent can be proven

by direct or circumstantial evidence; it may be inferred from acts or conduct or from the attendant

circumstances. Commonwealth           v.   Gregory, 267 Pa. Super. 103, 406 A.2d 539 (1979).               The

supporting facts as listed in the above paragraphs amply establish the Defendant's intent to commit

rape. Fortunately his malicious intent and committed efforts were thwarted by spirited Samaritans.

The Defendant's claims fail to state any basis for relief



                                                         20
         IV.     The claims regarding the trial court's response to two individually raised
                 objections at trial even as alleged did not present any harmful error.

         The Defendant contends that: "After an evidentiary objection by the Defendant, the Trial

 Court failed to sustain or overrule the objection, stating to the witness on the stand, "Just tell us

 what you remember seeing," See Notes of Testimony, March 18, 2015 at 34." The referred
                                                                                            CQ
 transcribed notes of testimony reflect that the witness who had been speaking was

 who was providing a lengthy emotionally charged and rapidly spoken recitation of all events
                                                                                 C
 during direct examination. Towards the end of this block of this testimony                stated:

        "...He had the bike. That's when I seen my friends "0" and Black. I told them to
        come. I was telling them because they were asking what's going on. I was telling
        them there's this guy who's talking nasty to us and he just don't waata go. They
        came over there. As I walking, I seen him in the back on top of       SS with his
        shorts on the floor, his underwear was down to his ankles, and I seen her trying to
        push of him off, And I don't' know what she was saying, but I know it was
        something, like, probably telling him to get off of her."


        The transcribed testimony then reflects an objection attributed to the prosecutor. Even

assuming the objection actually was raised by the defense, the Court's response to the objection

was fair. In an abundance of caution since it was unclear as to whether her last comment was a

combined deduction of what she had perceived or an opinion of what she was perceiving, this

Court interrupted              and correctly redirected this upset lay witness her by instructing her

to "Just tell us what you remember seeing. Afterward,                    clarified her testimony by

confining herself to relating her observations.

                    continued giving her direct testimony uninterrupted until she stated as follows:

               "... He was trying to get into a house. I didn't know he lived there. He was
       trying to kick the door and couldn't get in. Then he went through the alley way. So
       I guess then he went through the back, and I kept telling them to call the cop. We
       was waiting outside in front of his house for the cops. They made it and they came.
       That's when they found him in the house. Then they was asking if she wanted to
       press charges, and I told her, yes, do it. I been in situations like this, and we need


                                                  21
         to keep thesepeople off the street, because anything could happen to a kid or a little
         girl." (See N.T. March 18, 2015, page 34.)
                                                                      C
        At this point, the Defense raised an objection. Because                 was simply providing

her motivation for encouraging                 to press charges, this Court redirected her once again

by stating. "All right. OK, Go ahead." (See N.T. March 18, 2015, page 36.) Subsequently, upon

further examination she clarified the reasons for her statements and impressions. Her comment

was not prejudicial. No harmful error occurred necessitating the extreme measure of granting a

new trial.

CONCLUSION

   In reviewing the entire record, this Court finds no harmful, prejudicial, or reversible error.

Accordingly, the judgment of the trial court should be affirmed.



                                                      By the Court,



DATE:    /   /// /76                                  71/0/
                                                        nne M.   y        41e-,4girr




                                                22
