J-S73034-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, :               IN THE SUPERIOR COURT OF
                              :                     PENNSYLVANIA
              Appellee        :
                              :
        v.                    :
                              :
JOSE LUIS OLIVO,              :
                              :
              Appellant       :                No. 556 MDA 2017

          Appeal from the Judgment of Sentence October 26, 2016
              in the Court of Common Pleas of Berks County
           Criminal Division at No(s): CP-06-CR-0004662-20126

BEFORE: OLSON, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                   FILED JANUARY 04, 2018

      Jose Luis Olivo (Appellant) appeals from the judgment of sentence

entered October 26, 2016, after he was found guilty of rape by forcible

compulsion, rape of a child, involuntary deviate sexual intercourse (IDSI) by

forcible compulsion, IDSI with a child, indecent assault, endangering the

welfare of children, indecent exposure, and corruption of minors.    We affirm.

      As we write for the parties, we need not set forth a detailed recitation

of the factual history herein. Pertinent to this appeal, on February 17, 2012,

S.C., who was seven years old at the time, disclosed to her grandmother that

she was being sexually abused by her mother’s boyfriend, Appellant. “While

this report dealt with a specific incident that allegedly took place on February

14, 2012, S.C. explained at trial how that incident was part of an ongoing

pattern of sexual contact that had lasted several years and had occurred in



* Retired Senior Judge assigned to the Superior Court
J-S73034-17


several locations.” Id. at 1. As a result of this disclosure and subsequent

investigation, Appellant was charged with the aforementioned crimes.

        Following a jury trial, Appellant was convicted of all eight charged crimes


and was sentenced by the trial court to an aggregate term of 20½ to 60 years’


incarceration, followed by 17 years’ probation. Appellant filed a post-sentence


motion on November 14, 2016, claiming, inter alia, that the verdict was


against the weight of the evidence and requesting the trial court to reconsider


his sentence. On March 7, 2017, following a hearing, the trial court denied


Appellant’s motion.      This timely-filed appeal followed, wherein Appellant


presents the following issues for our review.1


        1. Whether the trial court erred in denying Appellant’s post
           sentence motion challenging the weight of the evidence as the
           testimony established that [S.C] did not disclose any
           penetration of her genitals to the initial responding officer,
           [S.C’s] mother who filed a [protection from abuse (PFA)] on
           behalf of [S.C.], or to CYS during their initial interview?

        2. Whether the sentence imposed was manifestly excessive,
           unreasonable and inconsistent with the provisions of the
           sentencing guidelines and insufficient reasons appear on the
           record supporting consecutive sentences for rape by forcible
           compulsion and rape of a child when the criminal act was one
           in [sic] the same for both charges?

Appellant’s Brief 5 (suggested answers and unnecessary capitalization

omitted).


1
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.


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      We begin our review of Appellant’s weight-of-the-evidence argument by

setting forth our standard of review.

      The decision of whether to grant a new trial on the basis of a
      challenge to the weight of the evidence is necessarily committed
      to the sound discretion of the trial court due to the court’s
      observation of the witnesses and the evidence. A trial court
      should award a new trial on this ground only when the verdict is
      so contrary to the evidence as to shock one’s sense of justice. …
      Our review on appeal is limited to determining whether the trial
      court abused its discretion in denying the motion for a new trial
      on this ground.

Commonwealth v. Chamberlain, 30 A.3d 381, 396 (Pa. 2011) (citations

omitted).

      A true weight of the evidence challenge concedes that sufficient
      evidence exists to sustain the verdict but questions which
      evidence is to be believed. We also observe that [i]n criminal
      proceedings, the credibility of witnesses and weight of evidence
      are determinations that lie solely with the trier of fact, [which] is
      free to believe all, part, or none of the evidence.

Commonwealth v. Lewis, 911 A.2d 558, 566 (Pa. Super. 2006) (quotation

marks and citations omitted). “Not merely an error in judgment, an abuse of

discretion occurs when the law is overridden or misapplied, or the judgment

exercised is manifestly unreasonable, or the result of partiality, prejudice,

bias, or ill-will, as shown by the evidence on record.” Commonwealth v.

Handfield, 34 A.3d 187, 208 (Pa. Super. 2011) (quoting Commonwealth v.

Cain, 29 A.3d 3, 6 (Pa. Super. 2011)).

      In support of his claim, Appellant asserts that S.C.’s testimony “was

fraught with lies, half-truths, and fabrications, and motivated by S.C.’s

mother[.]” Appellant’s Brief at 17. Appellant claims that, with the assistance


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of her mother, S.C. “falsely added details to the original complaint in an effort

to bolster the credibility” of S.C. Id. at 19. Specifically, Appellant notes that

neither the statement given to the responding police officer and CYS nor the

allegations contained in the PFA filed by mother on S.C.’s behalf contain an

allegation of forcible penetration, which S.C. later testified to at trial and

recounted to numerous individuals involved in the investigation. Id. at 14.

      The trial court responded to Appellant’s claim as follows.

      [Appellant] essentially argues that a seven year-old child should
      have incorporated a particular legal term of art into the description
      of years of sexual abuse she gave to every interviewer. This
      meritless argument is absurd. In sum, the mere fact that a child
      victim did not mouth talismanic magic legal terms during certain
      interviews but effectively did so during others fails to convince me
      that [Appellant] did not penetrate S.C.’s vagina with his penis just
      as this line of argument failed to convince the jury at trial.

             Indeed, the jury evaluated S.C.’s testimony, including the
      capable cross-examination by [Appellant’s] trial attorney, during
      which S.C. presented substantial evidence that [Appellant] had
      “penetrated” her vagina with his penis. Specifically, S.C. testified
      that, during the February 14, 2012 incident, [Appellant] had
      “pulled his pants down and got[ten] on top of her and stuck ... his
      penis a little inside of her.” Moreover, S.C. told the examining
      nurse during the February 20, 2012 examination at Reading
      Hospital, that [Appellant] had, among other things, “exposed
      himself to her,” “kissed her” and had “used force” to have “vaginal
      contact . .. with [his] penis.” Critically, on cross-examination, S.C.
      clarified that [Appellant] would insert his penis “all the way in” to
      her vagina, adding that she would ask [Appellant] to stop but that
      he would only stop when S.C.’s mother’s car appeared on the
      cameras. Such testimony, standing alone, would support the
      jury’s conclusion that [Appellant] had “penetrated” S.C.’s vagina
      with his penis.

            However, this testimony was supported by additional
      evidence including, among other things, S.C.’s testimony that the
      February 14, 2012 incident was part of an ongoing pattern of


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     abuse that occurred in multiple residences and extended over
     several years. Moreover, the jury heard about S.C.’s disclosure
     to her mother as indicated on the PFA Order as well as how S.C.
     had informed the nurse during the February 20, 2012 examination
     that [Appellant] would repeatedly kiss and grab S.C. and would
     pull his pants down in front of her and that, when S.C. would
     resist, [Appellant] would lay [sic] on her and “tr[y] to put his thing
     in [her].”     Furthermore, the jury watched the video of the
     February 29, 2012 forensic interview and observed the anatomical
     diagrams used during the interview to clarify what she had meant
     when she referred to private areas as she described [Appellant’s]
     repeated violation of her body and his position of trust. In
     addition, S.C. testified that [Appellant] would touch her private
     part “with his hands and his private part,” that her clothes would
     be taken off, that she could see [Appellant’s] private part, that
     [Appellant] would touch her butt with his private part, would kiss
     her, and would put his private part in her mouth.

           In other words, [Appellant’s] contentions are meritless
     because they are at variance with both the record and common
     sense. While S.C. may have disclosed years of abuse piecemeal
     and may not have revealed every detail of [Appellant’s] abuse to
     every individual who questioned her about it, such piecemeal
     disclosure would not be unexpected of a child like S.C. who had
     endured years of traumatic sexual abuse by [Appellant].
     Moreover, [Appellant’s] reliance on the description of [Appellant’s]
     conduct contained in the PFA is misplaced. Indeed, the PFA noted
     that [Appellant] had “pulled his pants down and got[ten] on top
     of her and . .. stuck . . . his penis a little inside of her.” Such a
     description fits the definition of “penetration.”

           Put simply, [Appellant] continues to recycle the same
     arguments that failed to convince the jury at trial. [Appellant] has
     similarly failed to present any evidence that would lead me to
     disturb their conclusions. While [Appellant] might disagree with
     the jury’s verdicts, there is nothing in the record that even hints
     that those verdicts were “shocking to the judicial conscience.”
     Therefore [Appellant’s] challenge to his convictions as against the
     weight of the evidence must fail.

Trial Court Opinion, 7/17/2017, at 13-15 (citations omitted).




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      We discern no abuse of discretion in the trial court’s conclusion. As the

trial court correctly observed, it is within the province of the jury, sitting as

fact-finder, to review the evidence and assess the credibility of the testifying

witnesses. See Commonwealth v. Miller, 2017 WL 4639576 (Pa. Super.

2017) (“Resolving contradictory testimony and questions of credibility are

matters for the finder of fact.”).     Moreover, Appellant’s claim that S.C.’s

testimony was fabricated is a challenge to the victim’s credibility, not the

weight of the evidence. See id. (“[I]n order for a defendant to prevail on a

challenge to the weight of the evidence, the evidence must be so tenuous,

vague and uncertain that the verdict shocks the conscience of the court.”)

(quotation marks and citation omitted).

      Furthermore, as alluded to by the trial court, Appellant questioned

testifying witnesses about S.C.’s disclosures and the addition of details

regarding penetration that Appellant claims S.C. did not disclose in her original

statements. Nonetheless, in light of the verdict, the jury, sitting as finder of

fact, found the Commonwealth had met its burden. See Commonwealth v.

Chambers, 599 A.2d 630, 642 (Pa. 1991) (“Issues of credibility are properly

left to the trier of fact for resolution, and the finder of fact is free to believe

all, part, or none of the evidence.”). No relief is due.

      Appellant’s final issue challenges the discretionary aspects of his

sentence.

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal


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      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment. Rather,
      the appellant must establish, by reference to the record, that the
      sentencing court ignored or misapplied the law, exercised its
      judgment for reasons of partiality, prejudice, bias or ill will, or
      arrived at a manifestly unreasonable decision.

                                     ***

            When imposing sentence, a court is required to consider the
      particular circumstances of the offense and the character of the
      defendant. In considering these factors, the court should refer to
      the defendant’s prior criminal record, age, personal characteristics
      and potential for rehabilitation.

Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)

(internal citations and quotation marks omitted).


      An appellant is not entitled to the review of challenges to the
      discretionary aspects of a sentence as of right. Rather, an
      appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction. We determine whether the
      appellant has invoked our jurisdiction by considering the following
      four factors:

            (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. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).

      The record reflects that Appellant timely filed a notice of appeal and that

Appellant preserved the issue by timely filing a motion for reconsideration of


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his sentence.      Moreover, Appellant has included in his brief a statement

pursuant to Pa.R.A.P 2119(f). We now turn to consider whether Appellant has

presented substantial questions for our review.

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

(citation and quotation marks omitted).

       In his 2119(f) statement, Appellant argues his sentence “was issued

without    sufficient   reasons     being    placed    on    the     record   and   is    so

disproportionate as to implicate the fundamental norms that underlie the

sentencing process.”         Appellant’s Brief at 12-13.           Specifically, Appellant

contends the trial court’s imposition of consecutive sentences for rape by

forcible compulsion and rape of a child was “manifestly excessive,

unreasonable and inconsistent with the sentencing guidelines[.]” Id. at 5.

Such   a   claim    raises    a   substantial     question   for    our   review.        See

Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015) (“[T]he

imposition of consecutive rather than concurrent sentences will present a

substantial question in only the most extreme circumstances, such as where



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the aggregate sentence is unduly harsh, considering the nature of the crimes

and the length of imprisonment.”) (citations and internal quotation marks

omitted).

      While Appellant’s question presented challenges the reasons, or lack of

reasons, set forth by the trial court for imposing consecutive sentences, in his

argument section, Appellant focuses on the reasoning set forth by the trial

court for imposing a 15-to-20 year sentence for rape of a child. Appellant’s

Brief at 22. In his brief Appellant cites the following statement by the trial

court at sentencing.

      I could tell you that the sentence that I’m about to impose is going
      to consider, heavily consider, what happened to the victim in this
      case. She was a young child, and I can’t imagine that this has not
      [a]ffected this young child for the rest of her life based on how
      young she was at the time and that your client was in a position
      of trust... and the fact that I think if I give a sentence any less
      than what I’m about to impose on the defendant, it would give the
      public the idea that they could potentially do this and receive
      something that’s a lighter sentence.

Appellant’s Brief at 22 (citation omitted).    Appellant argues that the trial

court’s reasoning for imposing his sentence amounted to an abuse of

discretion. Specifically, Appellant contends that

      [s]ince the trial court relied upon factors that are already
      considered by the sentencing guidelines, such as the age of the
      victim, as the crime requires a victim under the age of 13, an
      abuse of discretion is apparent. Furthermore, although protection
      of the community is an appropriate factor at sentencing, the
      notion of “sending a message to the community” by imposing a
      particular sentence is not a recognizable factor. By making an
      “example” out of the Appellant, the trial court failed to factor in
      his rehabilitative needs while incarcerated. Therefore, the trial



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      court sentence was manifestly excessive, unreasonable and
      inconsistent with the provisions of the sentencing guidelines.
Id. at 22-23.

      Here, Appellant fails to make a cognizable argument, or cite any

authority to support the contention that the individual nature of the crime and

the age of the victim are incorporated as factors that comprise the guidelines.

See Commonwealth v. Wall, 926 A.2d 957, 967 (Pa. 2007) (holding that

“the precise age of the victim, i.e., the fact that the victim was only seven-

years-old at the time of the sexual abuse, was not an element of rape or IDSI

of a victim less than thirteen years old and could justify an above-guideline

sentence. … Additionally, [the defendant] has offered no legitimate basis to

presume that individual factors of the case], are subsumed within the

sentencing guidelines.”).

      Furthermore, we note that the trial court ordered and received a pre-

sentence report (PSI) prior to sentencing. “[W]here the sentencing judge had

the benefit of a PSI, it will be presumed that he or she was aware of the

relevant information regarding the defendant’s character and weighed those

considerations along with mitigating statutory factors.” Commonwealth v.

Boyer, 856 A.2d 149, 154 (Pa. Super. 2004). Likewise, we are not persuaded

by Appellant’s argument that the sentence imposed by the trial court was done

so to make an “example” out of him. To the contrary, the record reflects that

the trial court cited ample reasoning to support the sentences imposed.




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     [Appellant,] I want to say I watched this trial and I watched [S.C],
     and then I watched the video of her interview, the forensic
     interview that was introduced at trial, and I, you know, what really
     perturbed me was the fact that you did this over such, such a
     period of time, that you did this to this young girl over years and
     at different residences. My recollection of the testimony was that
     there was a home on Perkiomen Avenue. There was another
     home in the city where this happened, and then this happened in
     an apartment or a housing unit above your garage where you
     work. So there were three different locations where [S.C] testified
     that you sexually abused her, and, quite frankly, I can tell you
     that not in this courtroom, but in one across the street, 12 people
     sat there and listened to this little girl testify, and they obviously
     believed everything that she said, and it really bothers me that
     the fact that you tried then to conceal it. This whole -- the
     testimony about the fact that this [surveillance] video was set up
     [facing the adjoining alley] so that you could see the mother when
     the mother would come home, and the girl knew that.

                                   ***
           There was evidence that that’s how it was utilized from
     [S.C.] from what I remember that she testified that [the abuse]
     would stop when the mother’s vehicle would be shown on that
     [surveillance] video, that the mother was now approaching the
     house, because my recollection of the testimony was that the
     mom was at work, and [Appellant] was home, and [S.C.] was in
     his care.

                                     ***
            [T]hat was the testimony, that this took place over the
     course of time, and that this took place, and I could tell you that
     the sentence that I’m about to impose is going to consider, heavily
     consider, what happened to [S.C] in this case. She was a young
     child, and can’t imagine that this has not [a]ffected this young
     child for the rest of her life based on how young she was at the
     time and that [Appellant] was in a position of trust. He essentially
     was a caretaker when this happened. In addition to that, I have
     to look out for all of us out there, and, you know, I read the
     assessment report, and the assessment report while it did find
     that [Appellant] is a non-violent predator, it did come to the
     conclusion[,] as the Commonwealth placed on the record[,] that
     [Appellant] suffers from pedophilia, so there is the possibility that
     this could happen again[,] that he could reoffend. None of us


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     ha[s] a crystal ball, but I do have in front of me a report that
     indicates [sic]. So I’m taking in[to] consideration everything that
     the [Commonwealth and defense counsel] said, taking into
     consideration the impact that this conduct that I heard during the
     course of the trial would have had on [S.C], taking into account
     the impact that this would have on the citizens of this county, and
     the fact that I think if I give a sentence any less than what I’m
     about to impose on [Appellant], it would give the public the idea
     that they could potentially do this and receive something that’s a
     lighter sentence.

                                    ***
            I think that [imposing any other sentence] would really
     diminimize [sic] the testimony that we heard during the course of
     -- I can’t recall at this point -- it was three or four days worth of
     trial testimony. And again, I really really [sic] predominantly am
     taking into account the extended period of time over which these
     assaults took place at several different locations was the
     testimony at the trial, and I think to do anything else would be to
     diminish the seriousness of what this jury concluded when they
     heard the testimony and found [Appellant] guilty.

N.T. 10/26/2016, at 21-24.

     Accordingly, after a thorough review of the record and briefs, we find

Appellant has presented no issue on appeal which would convince us to disturb

his judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/4/2018




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