J-S27014-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
                                               :
               v.                              :
                                               :
    OSCAR MARTINEZ                             :
                                               :
                      Appellant                :       No. 1735 EDA 2016


            Appeal from the Judgment of Sentence October 26, 2012
              In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0008142-2010,
                            CP-51-CR-0008143-2010


BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                               FILED MAY 24, 2017

        Appellant, Oscar Martinez, appeals nunc pro tunc from the judgment of

sentence entered in the Philadelphia County Court of Common Pleas,

following his bench trial convictions for two counts each of rape and

corruption of minors.1 We affirm.

        The trial court opinion accurately set forth the relevant facts of this

case as follows:

           The Commonwealth began its case by submitting a written
           stipulation concerning police and medical records and then
           called its first witness, the complainant at [docket CP-51-
           CR-0008143, J.O.], age fourteen at the time of trial, who
____________________________________________


1
    18 Pa.C.S.A. §§ 3121(a)(1); 6301(a)(1)(i), respectively.


_____________________________

*Retired Senior Judge assigned to the Superior Court.
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           testified as follows:

           [J.O.] identified [Appellant] as her grandmother’s husband
           whom she had known longer than she could remember and
           with whom she had a grandfather-granddaughter
           relationship.      She would see him often at her
           grandmother’s house and her home in Philadelphia where
           she lived with her stepfather, mother and sister. Her
           mother worked at a store down the block from their home
           and her stepfather worked in security on the first floor of
           their building. There were often times when [Appellant]
           would come visit her when she was alone while her
           parents were at work and her sister would cook and take
           dinner to them when they were on their…breaks. On one
           such occasion, three years prior to trial when [J.O.] was
           eleven, [Appellant] said to her that they were going to play
           a game. Thinking he meant a board game, she went into
           her room to get one and he followed her, closed the door
           and said they were going to play a different type of game.
           He put her on the floor, took off her clothes and engaged
           her in intercourse. After that, her back started to hurt and
           she experienced a certain type of odor coming from her
           vagina. She told her mother about those complaints[,]
           who took [J.O.] to a regular doctor who conducted a urine
           test and said it was just a urinary tract infection. About a
           year or so later, after her family had moved to New
           Jersey[2] and [J.O.] was still experiencing the odor, [J.O.’s]
           mother took her and her sister, [S.O.], to a hospital in
           New Jersey where [J.O.] was given another urine test and
           an OB/GYN exam and was told she had a “STD called trich”
           (a Sexually Transmitted Disease, Trichomoniasis, often
           called “trich”), for which she was given antibiotics. [J.O.]
           then told the doctor, who told [J.O.’s] mother, about the
           incident with [Appellant].

           On cross-examination, [J.O.] said she didn’t tell anyone
           about the incident because she was scared and didn’t know
           if anyone would believe her because she was only 11 and
           [Appellant] was a grown man. After cross-examination,
           the Commonwealth entered into evidence by stipulation
____________________________________________


2
    J.O.’s family moved to New Jersey in July 2009.



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          the medical records [of J.O.] from “Atlantic Care,” the
          hospital to which she referred, and then called [J.O.’s]
          sister, the complainant at [docket CP-51-CR-0008142,
          S.O.], age eighteen at [the] time of trial.

          [S.O.] also identified [Appellant] as her grandmother’s
          husband whom she had known longer than she could
          remember and with whom she had a grandfather-
          granddaughter relationship. Whenever her parents were
          working[,] she and her sister would take turns bringing
          them dinner, which would take about twenty-five to thirty
          minutes, and [Appellant] would come visit them about
          twice a week. One time, when she was about eleven or
          twelve and her sister took her stepfather dinner,
          [Appellant] told [S.O.] to go into her bedroom, walked in
          behind her, closed the door, told her not to say anything,
          took off her clothes and his pants and had intercourse with
          her. When asked whether this happened more than once,
          [S.O.] said [Appellant] would come over at least twice a
          week and it would happen every time, continuing from the
          time she was eleven, the last time when she was a
          freshman in high school in 2008-2009. It happened twice
          while she and [Appellant] were watching television in her
          grandmother’s bedroom at her [grandmother’s] and
          [Appellant’s] house, where she and her sister also had
          bedrooms, always when they were alone. In May of 2010,
          [S.O.] went to the hospital in New Jersey with her mother
          and her sister due to her having back and cramping pains
          and told the doctor there about the incidents with
          [Appellant] and also informed her mother.

          On cross-examination, defense counsel had [S.O.] agree
          that they found nothing wrong with her at the hospital,[3]
          and, in Family Court, [S.O.] testified that [Appellant] had
          intercourse with her three times a week from when she
          was eleven [until] when she was fifteen, which came to
          627 times, but, previous to that had told the police that it
          only happened twelve times, which [S.O.] attributed to
          increasing memories over time, and to her perceived
____________________________________________


3
 The hospital doctors attributed S.O.’s back and cramping pains to a pulled
muscle.



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       differences between the exact questions that the police
       and the prosecutor had asked her; counsel also noted that,
       while [Appellant] was a much larger person than [S.O.]
       and [S.O.] described him as having laid right on top of her
       with his arms on the floor, he did not crush her. After re-
       direct and re-cross, the prosecutor entered the following
       into evidence by stipulation:

          Cindy Delgado would testify [t]hat she’s a
          pediatrician who works at a Child Abuse Research
          Education and Service Institute, also known as
          CARES…. That on June 24th of 2010, she examined
          [S.O.] for a diagnosis and treatment of any residual
          findings of sexual abuse[.]

          [T]hat [S.O.] arrived at CARES with her mother,
          father and sister, [J.O.]

          Prior to the examination, Dr. Delgado spoke with
          [S.O.] [S.O.] told the doctor that she never had
          consensual sex and does not have a boyfriend. She
          also never had vaginal discharge, odor or bleeding or
          a history of accidental genital trauma. [S.O.] further
          stated that she was almost 12 years old when
          [Appellant] began abusing her. [S.O.] said that she
          thought it was not right when he started touching
          her[.] [S.O.] said [Appellant] touched her at her
          grandmother’s house and that he took off [her]
          clothes, laid [her] on the ground, climbed on top of
          [her], spread [her] legs and put his penis in [her]
          vagina. When he was finished, [S.O.] went into the
          bathroom and peed, it hurt and blood was in the
          toilet. [Appellant], she said, told her she could not
          tell anybody because nobody would believe her.
          [S.O.] told Dr. Delgado that it happened a couple of
          times between the ages of 11 and 15. [S.O.] also
          said that two years ago it happened at her
          stepfather’s [home].

          The examination revealed that [S.O.] has an absence
          of hymenal tissue at the six o’clock position
          indicating a well-healed transection. In light of no
          history of describing accidental blunt genital trauma,
          the only explanation for this transection is the forced

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          sexual intercourse [S.O.] described.

       The prosecutor then called [Victims’] mother, [C.S.], who
       confirmed everything in which her daughters described her
       being involved, including the visit to the hospital in Atlantic
       City [in May 2010] where a doctor there told her that
       [J.O.] had an infection that was transmitted by sex, for
       which they treated her and, after some follow-up care, was
       completely cleared up. On cross-examination, [defense]
       counsel took great pains pointing out that, at the hospital,
       she was given discharge instructions which said to call in
       three days for lab results but she had said that she and
       her daughters received the test results that same day.
       [C.S.] replied that she did not recall those instructions,
       reiterated her recollection of getting the results at the
       hospital, and pointed out that they (probably meaning only
       [J.O.]) also were prescribed their antibiotics that same
       day.    The prosecutor moved the state’s exhibits into
       evidence, C-1 being the Atlantic City hospital records for
       [J.O.], C-2 the [Dr.] Delgado stipulation and C-3[,] a
       medical report that went with the latter, and rested.

       The defense called [M.S.P.], who characterized herself as
       [Appellant’s] lover, was sexually active with him from 2006
       up until 2009, would frequently get tested for STDs,
       including trich, the last time having been June 30, 2010,
       and never tested positive. Defense counsel submitted by
       stipulation[:]   “That    there   were    three    character
       witnesses…[who would testify] that [Appellant] is a person
       of good character of peacefulness, honesty, law-abiding.”
       … The defense then moved into evidence D-2, the hospital
       records which the prosecutor had moved in as C-1, but
       which included the discharge instructions about which he
       had questioned [Victims’] mother containing the
       recommendation of a follow-up call that were not included
       with the latter, to which there was no objection, and D-3,
       which counsel characterized as [several learned treatises
       on trich and the follow-up tests associated with diagnosis
       of   trich,    which   the   court    admitted    over   the
       Commonwealth’s objection].

       The defense then rested, and, after announcing its verdict,
       the court explained[:]


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            The existence or nonexistence of the sexually
            transmitted disease is not a dispositive factor in this
            case. The primary factor as in all sexual assault
            cases has to do with the [c]ourt’s analysis of
            credibility of the Commonwealth witnesses which
            [the court] found not to be wanting. The verdict
            would have been the same even if there [were] no
            scientific evidence.

(Trial Court Opinion, filed July 29, 2016, at 2-6) (internal citations omitted).

Following trial, the court convicted Appellant of two counts each of rape and

corruption of minors.

      On October 26, 2012, the court sentenced Appellant at each docket to

concurrent terms of ten to twenty years’ imprisonment for rape, plus a

consecutive term of two and one-half to five years’ imprisonment for

corruption of minors.   Appellant subsequently filed post-sentence motions,

which were denied by operation of law, but he did not file a direct appeal.

      On July 22, 2013, Appellant timely filed a pro se PCRA petition. The

court appointed counsel, who filed an amended PCRA petition on June 27,

2014, requesting reinstatement of Appellant’s post-sentence and direct

appeal rights nunc pro tunc.       Appellant filed a second amended PCRA

petition on February 22, 2016, withdrawing his request to file post-sentence

motions nunc pro tunc.       On May 2, 2016, the PCRA court reinstated

Appellant’s direct appeal rights nunc pro tunc. Appellant timely filed a nunc

pro tunc notice of appeal on June 1, 2016.      On June 21, 2016, the court

ordered Appellant to file a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied on July 12,

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2016.

        Appellant raises the following issue for our review:

           WAS THE EVIDENCE AT TRIAL INSUFFICIENT TO SUSTAIN
           THE CONVICTIONS AS THEY WERE SO VAGUE AS TO
           WHEN THE ALLEGED INCIDENTS OCCURRED AND
           PREVENTED APPELLANT FROM MOUNTING A DEFENSE?

(Appellant’s Brief at 7).

        Appellant argues Victims failed to provide specific dates and times

regarding when the alleged assault(s) took place. Appellant asserts Victims

isolated their allegations to occurring “around” a specific year.       Appellant

maintains S.O. initially told police Appellant assaulted her on twelve

occasions.    Appellant claims S.O. later stated Appellant abused her three

times each week for four years, which totals over 600 assaults. Appellant

contends Victims’ lack of precise dates for the alleged assault(s) and varying

testimony deprived him of an opportunity to defend adequately against their

allegations, particularly precluding Appellant from supplying an alibi defense.

Appellant concludes the evidence was insufficient to sustain the verdicts, and

this Court must reverse his convictions. We disagree.

        When examining a challenge to the sufficiency of evidence:

           The standard we apply in reviewing the sufficiency of the
           evidence is whether viewing all the evidence admitted at
           trial in the light most favorable to the verdict winner, there
           is sufficient evidence to enable the fact-finder to find every
           element of the crime beyond a reasonable doubt. In
           applying the above test, we may not weigh the evidence
           and substitute our judgment for the fact-finder.            In
           addition, we note that the facts and circumstances
           established by the Commonwealth need not preclude every

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         possibility of innocence.      Any doubts regarding a
         defendant’s guilt may be resolved by the fact-finder unless
         the evidence is so weak and inconclusive that as a matter
         of law no probability of fact may be drawn from the
         combined circumstances. The Commonwealth may sustain
         its burden of proving every element of the crime beyond a
         reasonable doubt by means of wholly circumstantial
         evidence. Moreover, in applying the above test, the entire
         record must be evaluated and all evidence actually
         received must be considered. Finally, the trier of fact
         while passing upon the credibility of witnesses and the
         weight of the evidence produced, is free to believe all, part
         or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal

denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v.

Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)).

      The Crimes Code defines the offenses of rape and corruption of

minors, in relevant part, as follows:

         § 3121. Rape

            (a) Offense defined.—A person commits a felony of
         the first degree when the person engages in sexual
         intercourse with a complainant:

            (1)   By forcible compulsion.

18 Pa.C.S.A. § 3121(a)(1).

         § 6301. Corruption of minors

            (a)   Offense defined.—

            (1)(i) Except as provided in subparagraph (ii), whoever,
         being of the age of 18 years and upwards, by any act
         corrupts or tends to corrupt the morals of any minor less
         than 18 years of age, or who aids, abets, entices or
         encourages any such minor in the commission of any
         crime, or who knowingly assists or encourages such minor

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         in violating his or her parole or any order of court, commits
         a misdemeanor of the first degree.

18 Pa.C.S.A. § 6301(a)(1)(i).

      As a general rule, the Commonwealth must fix with reasonable

certainty the date when an alleged offense occurred.       Commonwealth v.

Devlin, 460 Pa. 508, 333 A.2d 888 (1975). Nevertheless, there is no “exact

degree of specificity in the proof of the date of a crime which will be required

or the amount of latitude which will be acceptable.” Id. at 517, 333 A.2d at

892. “Certainly the Commonwealth need not always prove a single specific

date of the crime. Any leeway permissible would vary with the nature of the

crime and the age and condition of the victim, balanced against the rights of

the accused.” Id. (internal citation and footnote omitted). “A Devlin claim

is a form of motion in arrest of judgment…; if the claim is meritorious, the

proper remedy is to vacate judgment of sentence and discharge the

defendant.” Commonwealth v. Groff, 548 A.2d 1237, 1240-41 (Pa.Super.

1988).   “[F]or purposes of a Devlin claim, the Commonwealth must be

allowed a reasonable measure of flexibility when faced with the special

difficulties involved in ascertaining the date of an assault upon a young

child.” Id. at 1241 (holding Commonwealth established date of defendant’s

offenses with sufficient particularity where child victim testified she was

molested while living with defendant and was wearing bathing suit when he

lured her into his bedroom; Commonwealth presented testimony from

victim’s grandmother and stepmother which helped to narrow timeframe of

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abuse to summer of 1985, based on victim’s behavior during that time; in

light of nature of crime and age and condition of victim, Commonwealth’s

proof as to time of criminal acts was constitutionally adequate).

      In cases involving a continuous course of conduct, the Commonwealth

must be afforded even broader latitude in establishing the dates of the

assaults. Id. See also Commonwealth v. Brooks, 7 A.3d 852 (Pa.Super.

2010), appeal denied, 610 Pa. 614, 21 A.3d 1189 (2011) (explaining

Commonwealth must be afforded broad latitude when attempting to fix date

of offenses which involve continuous course of criminal conduct, particularly

in cases involving sexual offenses against child victim; evidence was

sufficient to sustain defendant’s sex-offense convictions where one victim

testified that defendant forced him to perform oral and anal sex every day,

and another victim testified that defendant forced her to perform oral sex

more than ten times and pinpointed some assaults to when it was warm

outside and she was wearing shorts); Commonwealth v. G.D.M., Sr., 926

A.2d 984 (Pa.Super. 2007), appeal denied, 596 Pa. 715, 944 A.2d 756

(2008) (holding evidence was sufficient to sustain defendant’s convictions

for indecent assault, endangering welfare of children, and corruption of

minors, in connection with defendant’s ongoing sex abuse of his six-year-old

son; victim identified three different occasions on which he was abused

between September 1997 and March 1998; victim said he remembered

when abuse began because it was contemporaneous with his start of


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kindergarten, and said abuse ended when defendant was arrested; victim’s

testimony satisfied due process concerns under Devlin; six-year-old child

cannot be expected to remember each and every date he was victimized,

especially where those events are numerous and occur over extended period

of time; to require young children to provide such detail would give child

predators free rein);    Commonwealth v. Robinson, 462 A.2d 840

(Pa.Super. 1983) (holding evidence was sufficient to support defendant’s

convictions for statutory rape and corruption of minors where victim testified

that sexual acts had occurred on weekly basis from January 1978 until

September 1980; victim made entries in diary on numerous dates during

1978 and 1979, and had noted in diary three instances of defendant’s

“treatments” of her; victim testified defendant’s “treatments” occurred about

three times each week between 1978-1980; victim’s testimony was

sufficient to establish with reasonable certainty dates of assaults);

Commonwealth v. Niemetz, 422 A.2d 1369 (Pa.Super. 1980) (holding

evidence was sufficient to support defendant’s convictions for rape,

corruption of minors, and related offenses involving abuse of defendant’s

minor step-daughter; notwithstanding victim’s inability to pinpoint specific

dates, victim testified about defendant’s repeated assaults throughout her

childhood beginning when she was nine years old until she was about

seventeen; distinguishing Devlin, which involved one incident of assault,

with cases involving numerous assaults over time; cases involving one


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incident of sexual assault are more susceptible to fixing date of offense with

“reasonable certainty” than those cases involving numerous abuses over

time).

        Instantly, J.O. testified at trial, inter alia, that she has known Appellant

for as long as she can remember and shared a granddaughter-grandfather

relationship with Appellant.       Appellant often came to her house while her

parents were at work. J.O.’s parents worked close to her house, so J.O. and

S.O. would take turns bringing their parents dinner during their respective

breaks. On one occasion, when J.O. was eleven years old, 4 Appellant was at

her house while S.O. was delivering dinner to their parents. Appellant told

J.O. they were going to play a game. J.O. went into her room expecting to

play a board game. Appellant then told J.O. that they were going to play a

different type of game. Appellant closed J.O.’s bedroom door, took off J.O.’s

clothes, made her lay on the floor, and had sexual intercourse with her.

Following the assault, J.O. said her back started to hurt and she experienced

an odor coming from her vagina. J.O. told her mother about her ailments

and J.O.’s mother took J.O. to a doctor, who diagnosed J.O. with a urinary

tract infection.    About a year later, after J.O.’s family had moved to New

Jersey, J.O. still had the vaginal odor, so her mother took her to the hospital

where a urine screen and gynecological exam were performed. J.O.’s test

____________________________________________


4
    J.O. was born in April 1998, so the incident occurred around 2009.



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results   confirmed      she    had    a       sexually   transmitted     disease   called

Trichomoniasis, for which she was given antibiotics.               At that point, J.O.

disclosed Appellant’s abuse to the doctor, who informed J.O.’s mother about

the abuse. (See N.T. Trial, 5/11/12, 14-35.)

       S.O. testified at trial, inter alia, that she has also known Appellant for

as long as she can remember and that she enjoyed a granddaughter-

grandfather relationship with him.             S.O. echoed J.O.’s testimony that they

often took turns preparing and delivering dinner to their parents during their

employment breaks. S.O. said Appellant visited her home about twice each

week. One time when S.O. was about eleven or twelve years old,5 Appellant

told her to go into her bedroom, walked in behind her, closed the door, took

off S.O.’s clothes, and had sexual intercourse with her.                S.O. testified the

abuse continued every time Appellant visited their home until she was a

freshman in high school in 2008-2009.               S.O. also said the abuse occurred

twice at Appellant and her grandmother’s home.                   S.O. described those

assaults taking place while S.O. and Appellant were watching television in

Appellant and her grandmother’s bedroom. S.O. stated that on the date her

mother took J.O. to the hospital in New Jersey for treatment, S.O. was also

having back pain and cramps. After J.O. disclosed Appellant’s abuse, S.O.

informed the doctor and her mother that Appellant had abused her as well.
____________________________________________


5
 S.O. was born in April 1994, so the first incident of abuse occurred around
2005 or 2006.



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(See id. at 36-76.)

      Victims’ mother also testified at trial and corroborated her daughters’

accounts of bringing her and her husband dinner almost every night that

they worked. Victims’ mother said Appellant would often be alone with her

daughters, especially when she and her husband were working.          Victims’

mother recalled J.O. complaining about pain when she urinated and a

vaginal odor.   Victims’ mother described taking J.O. to a doctor, who

diagnosed J.O. with a urinary tract infection. After her family moved to New

Jersey, J.O. was still complaining about the vaginal odor, so, around May

2010, Victims’ mother brought J.O. and S.O. to the hospital.       The doctor

performed some tests and diagnosed J.O. with a sexually transmitted

disease.   During that hospital visit, J.O. and S.O. disclosed Appellant’s

abuse. (Id. at 80-95.)

      The Commonwealth also presented, by way of stipulation, evidence of

J.O. and S.O.’s medical records, which corroborated their accounts of

seeking medical treatment; and testimony from Dr. Cindy Delgado,

describing her examination of S.O. on June 24, 2010, and corroborating

S.O.’s description of the forced sexual intercourse. (Id. at 3-4; 76-78.)

      Under these circumstances, the evidence was sufficient to support

Appellant’s convictions.   J.O. testified that the abuse occurred in her

Philadelphia home when she was eleven years old, which would have been

sometime between April and July 2009, before her family moved to New


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Jersey. J.O.’s medical records and testimony from J.O.’s mother confirmed

J.O. sought treatment after the move. S.O. testified that Appellant began

abusing her when she was eleven or twelve years old (around 2005 or 2006)

and that the abuse continued until she was a freshman in high school in

2008-2009. S.O. said the abuse occurred each time Appellant visited their

home throughout those years, which was about two nights per week. S.O.

cannot be expected to recall the dates of each of those regular and frequent

assaults.6     See G.D.M., Sr., supra.             Therefore, the Commonwealth

established with reasonable certainty the dates of the assaults to sustain

Appellant’s convictions for rape and corruption of minors.7       See id.   See

also Brooks, supra; Groff, supra; Robinson, supra; Niemetz, supra.

Accordingly, we affirm.

       Judgment of sentence affirmed.


____________________________________________


6
  The trial court, as fact-finder, was free to resolve any inconsistencies in
S.O.’s testimony regarding the number of assaults.           See generally
Commonwealth v. Horne, 89 A.3d 277 (Pa.Super. 2014), appeal denied,
628 Pa. 620, 102 A.3d 984 (2014) (explaining it is function of fact-finder to
resolve any inconsistencies in testimony and to evaluate credibility of
witnesses).
7
  The Commonwealth has filed a motion to seal the record because the trial
court refers to Victims by name. This appellate Court’s redaction policies, in
addition to the statutes the Commonwealth cites in its motion, provide a
framework for protecting the privacy of victims in sexual assault cases.
Therefore, we deny the Commonwealth’s motion to seal. Nevertheless, we
strongly encourage trial courts to substitute initials for the names of sexual
assault victims as an added layer of privacy protection.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/2017




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