J-S44041-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 :       IN THE SUPERIOR COURT OF
                                             :             PENNSYLVANIA
              v.                             :
                                             :
RACHEL WARRIS,                               :
                                             :
                    Appellant                :            No. 2479 EDA 2016

              Appeal from the Judgment of Sentence June 14, 2016
                in the Court of Common Pleas of Lehigh County,
               Criminal Division, No(s): CP-39-CR-0003069-2015

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

MEMORANDUM BY MUSMANNO, J.:                            FILED AUGUST 31, 2017

        Rachel Warris (“Warris”) appeals from the judgment of sentence

imposed following her conviction of involuntary deviate sexual intercourse -

person less than 16 years of age, statutory sexual assault, corruption of

minors, and indecent assault.1 We affirm.

        The trial court sets forth the relevant facts as follows:

               Keyla Escobar, her husband, and her two daughters, ages
        10 and 11, and her son, L.V.; age 7, moved from Puerto Rico to
        the United States in August of 2009. At that time, [Escobar] and
        her family resided at 1839 South Church Street, Allentown,
        Lehigh County, Pennsylvania. In 2011, they moved down the
        block to 1832 South Church Street. Her son, L.V., befriended
        [S.W.], the son of [Warris]. In fact, L.V. and [S.W] were
        together nearly every day. In 2013, L.V. and his family moved
        to 829 Susquehanna Street, Allentown, Lehigh County,
        Pennsylvania.     Despite the distance, L.V. and [S.W.] still
        socialized together every day after school from about 6:00 PM to
        6:30 PM.




1
    See 18 Pa.C.S.A. §§ 3123(a)(7); 3122.1(b); 6301(a)(1)(ii); 3126(a)(8).
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            In early February 2015, after getting together with [S.W.],
     L.V. (then age 13) brought home a bracelet that [Warris] had
     made for him. Ms. Escobar thought that was “weird,” and put
     the bracelet on the back porch next to the trash can. About two
     weeks later, on February 11, 2015, L.V. visited [S.W.] after
     basketball practice. He arrived between 5:00 PM and 6:00 PM.
     L.V. and [S.W] went upstairs to use the PlayStation. Soon
     thereafter, Mr. Warris took his three sons to church.
     Consequently, L.V. went downstairs to the living room to watch
     television. He sat on the loveseat, while [Warris] was seated on
     the sofa in the living room. As [Warris] was watching the
     television, L.V. testified that [Warris] started to touch his private
     area over his clothes. Then [Warris] began to bite his chest area
     and arms over his shirt. [Warris] then pulled down L.V.’s pants
     and underpants, and she played with his penis with her hands.
     [Warris] then sucked his penis with her mouth for about five
     minutes. When [Warris] bit the tip of L.V.’s penis, he told her to
     stop because it hurt. She told him that he “can take it” and
     continued to suck his penis for several more minutes.

           As approximately 6:10 PM, Ms. Escobar called the Warris
     residence to coordinate a time to up L.V. Upon L.V. answering
     the telephone, Ms. Escobar heard heaving breathing.           L.V.
     immediately asked his mother to pick [him] up right away, or he
     would walk home. Ms. Escobar left her place of employment and
     drove to the Warris residence. When she arrived, she remained
     in the car and waited for L.V. to exit the Warris residence. When
     L.V. entered the car with Ms. Escobar, he sat down in the
     passenger seat and looked down at his lap. He was extremely
     quiet. In fact, after he arrived at home, he remained withdrawn.

           The next morning, on February 12, 2015, L.V. had left his
     cell phone on his desk because it was a pay-as-you-go phone
     and he needed his mother to add talk time to the cell phone. At
     approximately 10:30 AM, Ms. Escobar retrieved L.V.’s cell phone.
     A Facebook page immediately popped up and Ms. Escobar
     observed a picture of L.V. when he was three years old that had
     the words, “I love you” on it. When Ms. Escobar opened up the
     Facebook page, she could discern that [Warris] had sent this to
     her son. Ms. Escobar was shocked and pained. This prompted
     Ms. Escobar to search L.V.’s phone and open earlier messages.
     To Ms. Escobar’s dismay, she noticed that the text messages
     from [Warris] began in January of 2015. Nearly unable to
     speak, Ms. Escobar called her husband, Ortero, crying. Her


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     husband     immediately     returned   home.      Together,     at
     approximately 11:15 AM, Ms. Escobar and her husband went to
     school to speak with L.V. Ms. Escobar told her son to tell her the
     truth about what had happened the night before. L.V. indicated
     that [Warris] “tried to touch me.” He advised them that he had
     hit her “on the back of her head to get out.”

           Thereafter, all three of them went to the Warris residence
     to confront [Warris]. [Warris] did not want to speak with them,
     but eventually came out to the driveway. Ms. Escobar wanted
     an explanation as to what had happened between her son and
     the [Warris]. [Warris] said that “it is a joke. You are not
     supposed to tell your mommy.” When Ms. Escobar informed
     [Warris] that she was going to the police, [Warris] called her a
     “fucking bitch” and assumed an attitude. Ms. Escobar, her
     husband, and L.V. left the Warris residence and went directly to
     the Allentown Police Department….

           Theresa Rentko, a client interview specialist, spoke with
     L.V. at this time in a private room at the Lehigh County
     Government Center for approximately 30 minutes.                L.V.
     appeared to be nervous, and anxious. In her experience, Ms.
     Rentko found that it is very difficult for boys to come forward
     after being abused. L.V. had told Ms. Rentko that while he was
     watching “Family Feud” on the television, [Warris] walked over
     to him and started to touch him and bite his arms. L.V. said that
     [Warris] bit his penis, and tried to put his penis in her mouth. In
     her training and experience, Ms. Rentko knew that this version
     of events was not the complete story, as it is a process to get an
     adolescent boy to reveal what transpired.

            L.V. testified at trial that [Warris] would flash her breasts
     about twice a week. In particular, [Warris] had flashed her
     breasts when he and [S.W.] were playing on the PlayStation.
     [Warris] merely said, “Oops, I hope nobody saw that” when she
     lifted up her shirt to reveal her breasts. [Warris] also would
     flash her breasts when L.V. and [S.W.] were watching the
     television.

           Detective John Buckwalter [“Detective Buckwalter”] of the
     Allentown Police Department Special Victims Unit investigated
     the within matter. After reviewing the text exchange between
     [Warris] and L.V., and after watching Ms. Rentko’s interview with
     L.V., Detective Buckwalter interviewed [Warris] on February 13,


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      2015. [Warris] voluntarily arrived at the Lehigh Government
      Center at 1:30 PM with her husband. The interview was audio
      recorded. [Warris’s] date of birth is June 6, 1975, and she was
      39 years old at the time of the incident. [Warris] informed
      Detective Buckwalter that her texts were meant to be a joke.
      Initially, she did admit to biting L.V.’s penis, but only after he
      put his penis in her face. Upon further questioning, [Warris]
      stated that she may have sucked on L.V.’s penis for a couple of
      seconds and then bit the tip of his penis. This version of events
      evolved into her sucking on L.V.’s penis for about one minute.
      [Warris] also admitted that she had flashed her breasts a while
      ago, and that it was meant to be a joke. [Warris] and her
      husband returned home after the interview.

            At the time of trial, [Warris] admitted to exposing her
      breasts to L.V. She also admitted to having sent the myriad of
      text messages to L.V. However, [Warris] testified that she was
      the victim in the incident because L.V. approached her and put
      his penis in her face. [Warris] stated that she bit the tip of his
      penis, but denied sucking his penis, contrary to her version of
      events related during the interview with Detective Buckwalter.

Trial Court Opinion, 9/6/16, at 5-10 (citations and footnotes omitted).

      On March 9, 2016, a jury found Warris guilty of the above-mentioned

crimes. On June 14, 2016, the trial court sentenced Warris to an aggregate

prison term of 15 to 33 years. Warris filed a Post-Sentence Motion, which

the trial court denied. Warris filed a timely Notice of Appeal and a court-

ordered Pa.R.A.P. 1925(b) Concise Statement of Matters Complained of on

Appeal.

      On appeal, Warris raises the following questions for our review:

      A. Whether or not the evidence as presented was sufficient as a
         matter of law to support the conviction[s] for involuntary
         deviant sexual intercourse, statutory sexual assault,
         corruption of minors, and indecent assault – person less than
         16 years of age when the evidence that [Warris] consented



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         or organized the illegal activity was questionable          and
         uncertain?

      B. Whether the lower court abused its discretion in imposing
         manifestly excessive and unreasonable sentences the most
         serious [of] which were at the statutory maximum limit and
         all were imposed consecutively when the court failed to
         consider any mitigating factors, failed to apply and review all
         the necessary factors set as forth in 42 Pa.C.S.A. § 9721 and
         42 Pa.C.S.A. § 9781(c) and (d) or otherwise failed to set
         forth appropriate reasons for its decision that the maximum
         sentences were the only appropriate sentences?

Brief for Appellant at 7-8 (capitalization omitted).

      In her first claim, Warris alleges that the evidence was insufficient to

sustain her convictions because L.V.’s testimony was not credible. Id. at 12,

15, 16. Warris contends evidence did not “show that she intentionally and

knowingly engaged in the sexual contact between her and the 13-year-old

boy and that any incident that did occur was not her making[,] but she was

only responding to the inappropriate attentions shown her by the victim.”

Id. at 16.      Warris further contends that any other evidence was

circumstantial or inconclusive. Id.

      Initially, a challenge to the credibility of a witness goes to the weight

of the evidence, not its sufficiency. See Commonwealth v. Palo, 24 A.3d

1050, 1055 (Pa. Super. 2011); see also Commonwealth v. Widner, 744

A.2d 745, 751-52 (Pa. 2000) (discussing the distinction between challenges

to the weight and sufficiency of the evidence). The failure to recognize the

distinction between the two separate claims may result in waiver.          See,

e.g., Commonwealth v. Sullivan, 864 A.2d 1246, 1248-49 (Pa. Super.


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2004); Commonwealth v. Birdseye, 637, A.2d 1036, 1039-40 (Pa. Super.

1994). Despite Warris’s confusion, we will address her sufficiency claim.2

      We apply the following standard of review when considering a

challenge to the sufficiency of the evidence:

      The standard we apply in reviewing the sufficiency of the
      evidence claim is whether[,] viewing all of 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 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 received must be considered. Finally, the finder of
      fact[,] while passing upon the credibility of witnesses and that
      weight of the evidence produces, is free to believe all, part or
      none of the evidence.

Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).




2
  We note that Warris failed to raise a weight challenge, by name, in her
court-ordered Pa.R.A.P. 1925(b) Concise Statement. Nevertheless, we note
that “[t]he weight of the evidence is exclusively for the finder of fact, who is
free to believe all, part, or none of the evidence, and to assess the credibility
of the witnesses. This Court cannot substitute its judgment for that of the
jury on issues of credibility.” Commonwealth v. Dougherty, 860 A.2d 31,
36 (Pa. 2004) (citation omitted). Ostensibly, the jury found L.V.’s testimony
to be credible and we will not disturb such a finding on appeal. See id.


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      Involuntary deviate sexual intercourse is defined, in relevant part, as

follows:

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

                                     ***

           (7) who is less than 16 years of age and the person
           is four or more years older than the complainant and
           person are not married to each other.

18 Pa.C.S.A. § 3123(a)(7).      “Deviate sexual intercourse” is defined as

“sexual intercourse per os or per anus between human beings….”           Id.

§ 3101.

      Statutory sexual assault, in relevant part, occurs when a person

engages in sexual intercourse with the complainant, who is under 16 years

old, and the assailant is 11 or more years older than the complainant. Id.

§ 3122.1(b).

      Corruption of a minor is defined as an individual 18 years of age or

older who, “by any course of conduct in violation of Chapter 31 (relating to

sexual offenses) 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 an offense under Chapter 31 commits a felony of

the third degree.” Id. § 6301(a)(1)(ii).

      “A person is guilty of indecent assault if the person has indecent

contact with the complainant, causes the complainant to have indecent



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contact with the person or intentionally causes the complainant to come into

contact with seminal fluid, urine or feces for the purpose of arousing sexual

desire in the person or the complainant and … the complainant is less than

16 years of age and the person is four or more years older than the

complainant and the complainant and the person are not married to each

other.” Id. § 3126(a)(8).

     The victim, L.V., testified that in February 2015, when he was 13 years

old, that he often went to Warris’s home to hang out with her son, S.W.

N.T., 3/8/16, at 82-88, 94. L.V. testified that on several occasions, Warris

flashed her naked breasts at him, and occasionally at her son, while L.V.

would visit her home. Id. at 90. L.V. testified that on February 11, 2015,

while he was at Warris’s home, he was left alone with Warris.       Id. at 94.

L.V. testified that Warris sat down next to him while he was watching

television and began to touch and bite him.     Id. at 96-98.     Next, Warris

pulled down L.V.’s pants and underwear, and began to suck on his penis.

Id. at 98-101. This continued for approximately five minutes. Id. at 101.

     L.V.’s testimony is sufficient to sustain each of Warris’s convictions.

See 18 Pa.C.S.A. § 3106 (noting that “the testimony of a victim need not be

corroborated   in   prosecutions    under    this   chapter.”);    see   also

Commonwealth v. Bishop, 742 A.2d 178, 189 (Pa. Super. 1999) (stating

that the uncorroborated testimony of a victim alone is enough to sustain

convictions for sexual offenses.). Thus, the evidence, when reviewed in the



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light most favorable to the Commonwealth, is sufficient to sustain Warris’s

convictions, and Warris’s first claim is without merit.

      In her second claim, Warris challenges the discretionary aspects of her

sentence. See Brief for Appellant at 11, 16-20.

      An appellant challenging the discretionary aspects of the
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test:

      [W]e 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 or modify sentence, see
      Pa.R.Crim.P. [720]; (3) whether the 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.A. § 9781(b).

                                       ***

      The determination of what constitutes a substantial question
      must be evaluated on a case-by-case basis.          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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)

(quotation marks and some citations omitted).

      Here, Warris filed a timely Notice of Appeal, raised her claims in a

timely Post-Sentence Motion, and included a Rule 2119(f) statement in her

brief. Further, Warris’s claims that (1) the trial court failed to offer specific

reasons for the aggravated-range sentence, and (2) did not consider any

mitigating   circumstances    each    raise   a   substantial   question.   See


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Commonwealth v. Booze, 953 A.2d 1263, 1278 (Pa. Super. 2008) (stating

that “an allegation that the court failed to state adequate reasons on the

record for imposing an aggravated-range sentence … raises a substantial

question for our review.”); see also Commonwealth v. Rhodes, 8 A.3d

912, 919 n.12 (Pa. Super. 2010) (noting that “a substantial question exists

when a sentencing court imposed a sentence in the aggravated range

without considering mitigating factors.”).     Thus we will review Warris’s

sentencing claim.

      Our standard of review is as follows:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context and 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 judgement for reasons of partiality, prejudice, bias,
      or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Mastromarino, 2 A.3d 581, 589 (Pa. Super. 2010)

(citation omitted).

      At Warris’s sentencing hearing, the court considered Warris’s pre-

sentence investigation report. See N.T., 6/14/16, at 4; see also Rhodes, 8

A.3d at 919 (noting that where “the sentencing court had the benefit of a

pre-sentence investigation report, we can assume the sentencing court was

aware of relevant information regarding the defendant’s character and

weighed those considerations along with mitigating statutory factors.”)

(citation and quotation marks omitted); Commonwealth v. Downing, 990


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A.2d 788, 794 (Pa. Super. 2010) (stating “where a trial court is informed by

a pre-sentence report, it is presumed that the court is aware of all

appropriate sentencing factors and considerations, and that where the court

has been so informed, its discretion should not be disturbed”) (citations and

quotation marks omitted).    The trial court also considered the sentencing

guidelines, the impact on the victim, that the victim was completely

vulnerable due to his age and his relationship to Warris, that Warris has

shown no remorse and takes no responsibility for her actions, and that

Warris is a sexual predator and a danger to the community. N.T., 9/6/16, at

6-9, 10-11, 17-18; see also Trial Court Opinion, 9/6/16, at 16-17. Further,

the trial court considered the pre-sentence memorandum from Warris and all

relevant attachments. N.T., 9/6/16, at 4, 10-11. Thus, we conclude that

there was no abuse of discretion in the trial court’s sentence.          See

Commonwealth v. Sheller, 961 A.2d 187, 191-92 (Pa. Super. 2008)

(stating that the trial court did not abuse its discretion in imposing a

sentence beyond the aggravated range where the court considered the pre-

sentence investigation report, sentencing guidelines, protection of public,

and appellant’s rehabilitative needs); see also Commonwealth v. Perry,

883 A.2d 599, 603 (Pa. Super. 2005) (stating that a trial court may, in its

discretion, impose sentences consecutively or concurrently).

     Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/31/2017




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