J-S26041-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MANUEL A. CINTRON                          :
                                               :
                       Appellant               :   No. 869 EDA 2018

            Appeal from the Judgment of Sentence February 22, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0001486-2017,
              CP-51-CR-0007199-2015, CP-51-CR-0007242-2015,
                            CP-51-CR-0007244-2015


BEFORE:      PANELLA, P.J., GANTMAN, P.J.E., and PELLEGRINI, J.*

MEMORANDUM BY PANELLA, P.J.:                          FILED OCTOBER 28, 2019

        Appellant, Manuel A. Cintron, appeals from the judgment of sentence

imposed following his jury conviction of rape, kidnapping, sexual assault,

attempted kidnapping, unlawful restraint, possessing an instrument of crime,

false identification to law enforcement, and intimidation of a witness. The court

sentenced him to an aggregate term of not less than forty-five years nor more

than ninety years of incarceration, followed by five years’ probation. Appellant

challenges the admission of certain evidence. He asserts the evidence was

insufficient to prove the charge of false identification to law enforcement. He




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*   Retired Senior Judge assigned to the Superior Court.
J-S26041-19


claims his sentence was excessive.             We vacate the conviction for false

identification. In all other respects, we affirm.

       We derive the facts of the case from the trial court opinion and our

independent review of the certified record. The trial court set forth the facts

of the case as follows:1

             The facts, when viewed in the light most favorable to the
       Commonwealth as the verdict-winner, show that at 4:10 AM on
       May 1, 2015, [R.C.] was walking to catch the bus in the area of
       12th and Ruscomb Streets in Philadelphia on the way to work.
       Manuel    Cintron    approached    her,    brandished  a    black
       semiautomatic pistol, pulled the slide back and threatened [R.C.
       with] “Come with me” and “Don't do anything stupid or I’ll shoot
       you in the head.” Cintron then pulled [R.C.] towards his old blue
       minivan. A struggle ensued and Cintron covered this victim’s
       mouth when she attempted to scream. Fortunately, [R.C.] was
       able to fight her way out and escape. Running toward Broad
       Street, she managed to jump on a bus and get to her workplace
       in Center City, where she informed her boss and then the police
       about what had occurred, providing a detailed description of the
       defendant, his clothing, the van as well as the gun.

             About an hour after attacking [R.C.], Cintron approached
       [J.Q.] on the 2000 block of East York Street, again brandished the
       black semi-automatic hand gun, pointing it at [J.Q.], telling her
       “Do what I say and nothing bad will happen.” Cintron ordered
       [J.Q.] into the van, which was without rear seating. The defendant
       drove around the area for a short period of time before stopping
       near a factory. Cintron ordered [J.Q.] into the back of the van and
       told her to undress. The victim asked if he was serious, began
       shaking and struggled to remove her clothing. Cintron took his
       prey’s shoes and pulled down her pants, then took down his own
       pants demanding that [J.Q.] “Suck me off” and to “put this
       condom on me.” She attempted to put the condom on Cintron but
       she was shaking with fear. This defendant tried to force his penis
       into this victim’s vagina, but was unable as [J.Q.] was clenching
____________________________________________


1To protect the privacy of the victims we have substituted initials for their full
names.

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      her legs. Cintron flipped her over and vaginally raped this victim
      from behind. Following the rape, Cintron demanded [J.Q.]’s
      identification which he photographed with his cell phone - warning
      his victim that if anything happened to him, the defendant’s
      brother would come after her and her family. He then returned
      her driver’s license. Cintron drove the victim around, telling her
      what to say if stopped by the police. The defendant eventually
      dropped [J.Q.] off on the 2600 block of East York Street. [J.Q.]
      was hysterical when she arrived at work. A co-worker called her
      family and her uncle and brother picked her up and took her to
      the hospital where they flagged down a police officer to report the
      crime. This victim gave a detailed description of the defendant,
      his clothing, the van and the gun. Episcopal Hospital does not
      admit sexual assault victims so [J.Q.] was transported to the
      Sexual Assault Response Center.

             Surveillance video was obtained from the area, the van
      identified and composite sketches created. Early morning plain
      clothes surveillances were conducted and a similar van observed.
      The registered owner of the van admitted this defendant had paid
      for the van but put it in her name because the defendant did not
      have a valid drivers’ license. [J.Q.] positively identified the
      defendant from a photo array, however [R.C.] was unable to do
      so. Mr. Cintron was arrested on May 18, 2015, in an apartment in
      the 700 block of Princeton Street in Philadelphia. Upon being
      confronted by the police, the defendant gave the name of “Omar
      Rivera”.

            On Christmas Day, 2016, [J.Q.] was at home with her
      family, when her brother retrieved the mail. There was a letter
      from the defendant in prison, addressed to his victim at her house.
      The intent of the letter was clear - to intimidate this victim.

Trial Court Opinion, 8/6/18, at 3-4 (record citations omitted).

      We also note that Noah Brophy was the sexual assault nurse examiner

(“SANE nurse”) who performed the examination on the victim. When Nurse

Brophy was not available for trial, the court permitted the Commonwealth to

present the testimony of Dr. Ralph Riviello, as an expert, over the initial

objection of Appellant. See N.T. Trial, 10/10/17, at 28.

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       Dr. Riviello was the founder and Medical Director of the Philadelphia

Sexual Assault Response Center (sometimes referred to as “PSARC” in the

record).    He testified as an expert in sexual assault examination, and

emergency medicine.2 Ultimately, Cintron’s counsel stipulated to Dr. Riviello’s

expertise. See N.T. Trial, 10/10/17, at 34. Dr. Riviello based his testimony

on the patient records of the victim as prepared by SANE nurse Brophy,

photographs taken by Brophy, as well as his own professional experience.

       The trial court permitted the Commonwealth to publish to the jury one

color photograph of three taken by Brophy, showing micro tears in the vaginal

area not visible with the naked eye, as highlighted by a diagnostic blue dye,

toluidine. The trial court gave the jury a cautionary instruction before they

saw the photograph.

       Cintron’s defense was that the sex was consensual.3            J.Q. denied

consent, both on direct examination and on cross-examination.            See N.T.

Trial, 10/05/17, at 129, 155.             Notably, Dr. Riviello testified that the

photograph of the injury presented to the jury could not establish whether the


____________________________________________


2Dr. Riviello testified that in addition to serving as the medical director of
PSARC, he was employed as a professor of emergency medicine at Drexel
University, and as an attending physician in the Emergency Department at
Hahnemann University Hospital. See N.T. Trial, 10/10/17, at 39.

3 Appellant exercised his constitutional right not to testify. See N.T. Trial.
10/11/17, at 5. The defense rested without presenting any witnesses. See
N.T. Trial, 10/11/17, at 16. Therefore, there was no evidence supporting the
claim of consent. It was defense counsel who raised and argued the claim of
consensual sex. See e.g., N.T. Trial, 10/05/17, at 38.

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sex was consensual or non-consensual. See N.T. Trial, 10/10/178, at 52

(“Nobody can do that.”). He did testify that the injuries to the victim were

consistent with J.Q.’s report of sexual assault. See N.T. Trial 10/10/17, at

54.

      We also highlight that when the police came to arrest Cintron he denied

his identity, claiming to be “Omar Rivera Morales” and offering a driver’s

license in that name as proof. See N.T. Trial, 10/10/17, at 129. However,

the police recognized Cintron from his description, most notably a large,

distinctive tattoo on his neck, even though he had dyed his hair, shaved off

his goatee, and begun wearing glasses. The police arrested him.

      At the close of its case, the Commonwealth moved a number of exhibits

into evidence, including the SANE report, before it rested.              The following

exchange occurred:

      [DEFENSE COUNSEL]        Your Honor, we have no objection.
      However, the majority of those exhibits were admitted for very
      limited purposes. We would have an objection for those limited
      purposes.

      THE COURT: That’s fine. They are admitted for the record.

N.T. Trial, 10/11/17, at 15.

      The jury convicted Cintron of all charges.              When polled, the jury

confirmed that the verdict was unanimous. After reviewing the pre-sentence

investigation report, sentencing memoranda and other evidence, the court

imposed an aggregate sentence of not less than forty-five nor more than

ninety   years   of   incarceration   in    a    state   correctional   institution,   as

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J-S26041-19


recommended by the Commonwealth, followed by five years of reporting

probation. This timely appeal followed the denial of Cintron’s motion for

reconsideration.4

        Cintron presents five questions on appeal:

        A. Is a forensic sexual assault examination report testimonial,
        implicating the state and federal Confrontation Clauses, and if so,
        did the trial court violate appellant’s right of confrontation under
        Article 1, Section 9 of the Pennsylvania Constitution and the Sixth
        Amendment to the United States Constitution in permitting the
        use of and reading into the record the contents of that report by
        another expert as the basis of his own opinion?

        B. Although Rule of Evidence 703 allows an expert to use
        inadmissible evidence to form an opinion, when the testifying
        expert’s opinion has relevance and probative value only if the
        report he relied on is true, did the trial court err in permitting Dr.
        Riviello to testify to the contents of a report by a non-testifying
        employee?

        C. Did the trial court err in permitting the introduction of a graphic,
        close up color photograph of the complainant’s vagina as the
        probative value of the evidence was outweighed by its prejudicial
        effect and was otherwise cumulative?

        D. Is the evidence insufficient to prove the charge of false
        identification to law enforcement where there was no evidence
        that Appellant was informed that he was the subject of an official
        investigation?

        E. Did the trial court impose a manifestly excessive and grossly
        disproportionate sentence where it imposed a de facto life
        sentence in that the sentences were well beyond the aggravated
        range, they were applied consecutively without sufficient basis,
        and the court failed to consider the proper factors specified in
        Section 9721 of the Sentencing Code?



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4   Both Cintron and the trial court complied with Pa.R.A.P. 1925.

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Appellant’s Brief, at 5.

      In his first issue, Cintron contends that the report of J.Q.’s examination

by the SANE nurse, Noah Brophy, was testimonial in nature and, therefore,

its use at his trial violated his rights under the Confrontation Clause of the

Sixth Amendment of the United States Constitution and Article I, Section 9 of

the Pennsylvania Constitution. We disagree.

      The Sixth Amendment’s Confrontation Clause provides that, “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted

with the witnesses against him.” See U.S. Const. amend. VI. The United

States Supreme Court has held that “this bedrock procedural guarantee

applies to both federal and state prosecutions.” Crawford v. Washington,

541 U.S. 36, 42 (2004) (citation omitted).         Article I Section 9 of the

Pennsylvania Constitution provides: “In all criminal prosecutions the accused

hath a right . . . to be confronted with the witnesses against him. . . .”

      Whether the admission of the SANE report violated an appellant’s rights

under the Confrontation Clause is a question of law, for which the appellate

standard of review is de novo. Our scope of review is plenary. See

Commonwealth v. Yohe, 79 A.3d 520, 544 (Pa. 2013).

      In Crawford, 541 U.S. at 51, 124 S. Ct. 1354, the [United States
      Supreme] Court held that the Sixth Amendment guarantees a
      defendant’s right to confront those “who ‘bear testimony’ ” against
      him, and defined “testimony” as “[a] solemn declaration or
      affirmation made for the purpose of establishing or proving some
      fact.” The Confrontation Clause, the High Court explained,
      prohibits out-of-court testimonial statements by a witness unless


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J-S26041-19


      the witness is unavailable and the defendant had a prior
      opportunity for cross-examination. Id. at 53–56, 124 S. Ct. 1354.

Yohe, 79 A.3d at 531 (footnotes omitted).

      The [United States Supreme] Court described the class of
      testimonial statements covered by the Confrontation Clause as
      follows:

        Various formulations of this core class of “testimonial”
        statements exist: “ex parte in-court testimony or its
        functional equivalent-that is, material such as affidavits,
        custodial examinations, prior testimony that the defendant
        was unable to cross-examine, or similar pretrial statements
        that declarants would reasonably expect to be used
        prosecutorially;” “extrajudicial statements . . . contained in
        formalized testimonial materials, such as affidavits,
        depositions, prior testimony, or confessions;” “statements
        that were made under circumstances which would lead an
        objective witness reasonably to believe that the statement
        would be available for use at a later trial.”

Id. at n.11, quoting Crawford, 541 U.S. at 51–52 (citation omitted).

      Here, Cintron maintains that the SANE report is testimonial, such that

the trial court violated his constitutional right to confrontation by “permitting

the use of [the report] and reading into the record the contents of that report

by another expert as the basis of his own opinion[.]” Appellant’s Brief, at 4.

Cintron’s claim does not merit relief.

      Preliminarily, we note that Cintron’s repeated assertion that Dr. Riviello

simply read the report into the record is belied by the trial transcript and

substantially mischaracterizes Dr. Riviello’s testimony.     It is true that Dr.

Riviello referred to the report. It is also true that he testified based on his

own experience and expertise about how a SANE examination is conducted.


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Moreover, Cintron’s mischaracterization does not support his assumption that

the report was testimonial.

      In any event, Cintron fails to establish that Riviello’s testimony deprived

him of his right to confrontation. With respect to Riviello’s testimony, Cintron

can only claim to have been denied the right to confront two witnesses. First,

he could argue he was denied the right to confront J.Q., whose statements

were included in Brophy’s report.

      However, J.Q. (as well as R.C.) accused Cintron of multiple violent

crimes. As noted previously, Cintron conceded that had sexual intercourse

with J.Q. The primary factual issue at trial was therefore whether the

intercourse was consensual.

      J.Q. vigorously testified at trial that it was not. See N.T., 10/5/17, at

114-124. Cintron availed himself of the opportunity to cross-examine J.Q. at

trial. See id., at 147-156. He therefore could not, and indeed does not, argue

that he was deprived of his right to confront J.Q.

      Cintron maintains that “the issue is not with what J.Q. said to Nurse

Brophy, but what Nurse Brophy says he saw and heard, and then documented

and relayed in a report.” Appellant’s Brief, at 31. However, he never specifies

what Nurse Brophy reported that he claims is objectionable.

      Our independent review of the SANE report confirms that Nurse Brophy

only reported the information J.Q. gave him. He offered no opinions, made




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no assessments of credibility or anything beyond the fact-based answers

provided by J.Q.

      A careful reading of Dr. Riviello’s testimony confirms that aside from a

factual recitation of the general procedures for a SANE examination, as

implemented in the examination of J.Q., nothing in his testimony conveys

what Nurse Brophy “saw and heard” beyond the objective facts of the

examination itself as related to him by J.Q. (Appellant’s Brief, at 31). In the

end, Dr. Riviello opined that the physical observations, as opposed to J.Q.’s

statements, contained in Brophy’s report were consistent with consensual

intercourse. See N.T., 10/10/17, at 67.

      As a result, Cintron has failed to establish that he was entitled to

confront Brophy. The inculpatory nature of Brophy’s report was entirely due

to the statements of J.Q. As Cintron concedes, he had the opportunity to

confront J.Q. over her accusations. His failure to identify how any statement

of Brophy was used against him at trial is fatal to his claim.

      Additionally, this case is distinguishable from the line of cases cited by

Cintron, which found their respective reports testimonial and surrogate (i.e.,

non-author) testimony in violation of the Confrontation Clause. Importantly to

the High Court, the reports in those cases proved “one fact necessary for [ ]

conviction.” Bullcoming v. New Mexico, 564 U.S. 647, 651 (2012) (report

which confirmed blood alcohol content in DWI case was testimonial); see also

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 310–11 (2009) (analyst’s


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affidavit certifying suspect substance as cocaine was testimonial, implicating

Confrontation Clause); Commonwealth v. Brown, 185 A.3d 316, 318 (Pa.

2018), Opinion Announcing the Judgment of the Court, (autopsy report

concluding manner of death from gunshot wounds to be homicide was

testimonial in nature, but admission was harmless error).5 Compare Yohe,

79 A.3d at 543 (testimony of forensic toxicologist who analyzed test results of

appellant’s blood, determined blood alcohol content by comparing results, and

authored Toxicology Report, satisfied appellant’s right to confrontation).

       As noted above, the factual issue at trial here was whether J.Q.

consented. By Dr. Riviello’s testimony, Brophy’s physical observations of J.Q.

during the SANE examination were consistent with both parties’ positions.

Brophy’s out-of-court statements were not used to establish any element of

the crimes the Commonwealth sought to prove. Cintron is due no relief on his

first issue.

       In his second issue, Cintron claims that the trial court erred in permitting

Dr. Riviello to testify based on the Brophy SANE report. In an argument which

frequently overlaps the arguments already made in his first claim, Cintron

maintains the report “and its contents” should have been excluded.

Appellant’s Brief, at 22. He asserts that Pennsylvania Rule of Evidence 703



____________________________________________


5We note for the sake of clarity and completeness that Cintron confuses
Bullcoming with Melendez-Diaz and mis-cites the facts of the case. See
Appellant’s Brief, at 25.

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(explicitly permitting an expert to rely on non-admissible facts or data) was

improperly used to supersede his confrontation rights, with Dr. Riviello acting

as a mere conduit. See id. at 32, 35-36. We disagree.

        Preliminarily, on this issue, Cintron failed to raise this objection with the

trial court. Instead, as previously noted, defense counsel made only a vague,

generalized objection to “the majority” of the Exhibits moved into evidence by

the Commonwealth. N.T. Trial, 10/11/17, at 15.6

        “A party complaining, on appeal, of the admission of evidence in
        the court below will be confined to the specific objection there
        made.” Commonwealth v. Cousar, 593 Pa. 204, 231, 928 A.2d
        1025, 1041 (2007), cert. denied, 553 U.S. 1035, 128 S. Ct. 2429,
        171 L.Ed.2d 235 (2008). If counsel states the grounds for an
        objection, then all other unspecified grounds are waived and
        cannot be raised for the first time on appeal. Commonwealth v.
        Arroyo, 555 Pa. 125, 142, 723 A.2d 162, 170 (1999);
        Commonwealth v. Stoltzfus, 462 Pa. 43, 60, 337 A.2d 873, 881
        (1975) (stating: “It has long been the rule in this jurisdiction that
        if the ground upon which an objection is based is specifically
        stated, all other reasons for its exclusion are waived, and may not
        be raised post-trial”); Commonwealth v. Duffy, 832 A.2d 1132,
        1136 (Pa.Super.2003), appeal denied, 577 Pa. 694, 845 A.2d 816
        (2004) (stating party must make timely and specific objection to
        preserve issue for appellate review).


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6   As noted, supra at 5:

        [DEFENSE COUNSEL]        Your Honor, we have no objection.
        However, the majority of those exhibits were admitted for very
        limited purposes. We would have an objection for those limited
        purposes.

THE COURT: That’s fine. They are admitted for the record.

N.T. Trial, 10/11/17, at 15.


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Commonwealth v. Lopez, 57 A.3d 74, 81–82 (Pa. Super. 2012) (emphasis

in original).

      In this case, Cintron failed to raise the objection he now proposes on

appeal in the trial court. Accordingly, his claim is waived.

      Moreover, it would not merit relief. The trial court properly determined

that, to the extent that the nurse’s SANE report incorporated statements by

J.Q. herself when seeking medical treatment, those statements were either

not hearsay or fell within a recognized exception to the hearsay rule. (See

N.T. Trial, 10/10/17, at 28; see also Pa.R.E. 803 (4) (A, B) (Statement Made

for Medical Diagnosis or Treatment.). Additionally, Rule 703 plainly permits

an expert to base an opinion on facts or data even if that data would not be

independently admissible. See Pa.R.E. 703. Cintron’s second issue is waived

and would not merit relief.

      Cintron’s third issue is that the trial court erred in permitting the jury to

view one color photograph of the victim’s vagina, stained with a diagnostic

blue dye, toluidine, to show tears or abrasions not visible to the naked eye.

Cintron asserts that the display of the photograph was inflammatory, with the

probative value out-weighed by the prejudicial effect. (Appellant’s Brief, at

39. We disagree.

      Our standard of review for Cintron’s claim is for an abuse of discretion.

      A trial court has broad discretion to determine whether evidence
      is admissible and a trial court’s ruling on an evidentiary issue will
      be reversed only if the court abused its discretion. Accordingly, a
      ruling admitting evidence will not be disturbed on appeal unless

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      that ruling reflects manifest unreasonableness, or partiality,
      prejudice, bias, or ill-will, or such lack of support to be clearly
      erroneous.

Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa. Super. 2013) (internal

quotation and citations omitted).

      When considering the admissibility of photographs of a crime scene or

victim, which by their very nature can be unpleasant, disturbing, and even

brutal, the trial court must engage in a two-step analysis:

      The trial court must apply a two-part test prior to admitting
      photographs into evidence over objection by a party. First, the
      court must determine whether the photograph is inflammatory.
      This Court has interpreted inflammatory to mean the photo is so
      gruesome it would tend to cloud the jury’s objective assessment
      of the guilt or innocence of the defendant. Next, if the trial court
      decides the photo is inflammatory, in order to permit the jury to
      view the photo as evidence, it must then determine whether it [ ]
      has essential evidentiary value.

Commonwealth v. Funk, 29 A.3d 28, 33 (Pa. Super. 2011) (citations

omitted).

      Here, we need not decide if the photograph was inflammatory. The trial

court, in its discretion, decided that the photo was inflammatory, and we

decline to disturb that finding. However, the court also concluded that the

photograph had essential evidentiary value in confirming the vaginal injury

sustained by J.Q. The photograph furnished the foundation for Dr. Riviello’s

testimony that the injury shown was consistent with J.Q.’s report of sexual

assault. The trial court explained the procedures it followed after concluding

that the photograph was inflammatory:


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      The jury was only permitted to view the one photo, one time, for
      a very brief moment, and not permitted to take the photograph
      into the deliberation room. The jury was cautioned prior to the
      photograph being exhibited in an attempt to partially sanitize the
      inflammatory nature of the picture. Clearly the court did not abuse
      its discretion in allowing a single photograph of the victim’s vaginal
      area where its probative value clearly outweighed the prejudice.

Trial Court Opinion, at 13.    A jury is presumed to follows the trial court’s

instructions. Commonwealth v. Baez, 720 A.2d 711, 721 (Pa. 1998).

      On independent review, we conclude that the trial court acted well within

the bounds of its discretion, and we decline to disturb its ruling. Cintron’s

third issue does not merit relief.

      Cintron’s fourth claim is that the evidence was insufficient to sustain the

guilty verdict for false identification to a law enforcement officer.          See

Appellant’s Brief, at 41-44. The Commonwealth does not oppose vacating

Cintron’s concurrent probationary sentence. See Commonwealth’s Brief, at

20. The trial court maintains that “under these specific circumstances” the

evidence was sufficient to affirm the conviction. See Trial Court Opinion, at

17. On independent review, we conclude that under controlling authority, we

are constrained to vacate the conviction.

      Our Crimes Code defines the offense of false identification to law

enforcement authorities as follows:

      (a) Offense defined.−A person commits an offense if he
      furnishes law enforcement authorities with false information about
      his identity after being informed by a law enforcement
      officer who is in uniform or who has identified himself as a
      law enforcement officer that the person is the subject of an
      official investigation of a violation of law.

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      (b) Grading.−An offense under this section is a misdemeanor of
      the third degree.

18 Pa.C.S.A. § 4914 (emphasis added).

      Our standard of review of insufficiency claims is well settled:

      A claim challenging the sufficiency of the evidence is a question of
      law. Evidence will be deemed sufficient to support the verdict
      when it establishes each material element of the crime charged
      and the commission thereof by the accused, beyond a reasonable
      doubt. Where the evidence offered to support the verdict is in
      contradiction to the physical facts, in contravention to human
      experience and the laws of nature, then the evidence is insufficient
      as a matter of law. When reviewing a sufficiency claim[,] the court
      is required to view the evidence in the light most favorable to the
      verdict winner giving the prosecution the benefit of all reasonable
      inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

      On appeal, Cintron does not deny that he gave the police false

information. Nevertheless, he maintains that the police who came to arrest

him did not inform him that he was the subject of an official investigation for

violation of law. See Appellant’s Brief, at 41-42.

      Cintron cites In re D.S., 39 A.3d 968, 974–75 (Pa. 2012) (holding that

information must be provided to the individual by the law enforcement

officer). An implication from surrounding circumstances is not enough. See

Commonwealth v. Kitchen, 181 A.3d 337, 345 (Pa. Super. 2018) (en banc)

(holding “Commonwealth must prove that individual was told by police that

he or she was under investigation, and that must occur prior to the individual’s


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presentment of false identity information”); see also Commonwealth v.

Barnes, 14 A.3d 128, 132 (Pa. Super. 2011) (declining to condone provision

of false identification information to police officers, but applying “the explicit

language of the statute”).

      Accordingly, we are constrained to reverse Cintron’s conviction for this

offense only. Because the associated sentence was for a term of probation,

remand for re-sentencing is unnecessary. See Commonwealth v. Thur, 906

A.2d 552, 570 (Pa. Super. 2006) (finding no need for remand because

vacating assault sentence did not disturb sentencing scheme where assault

sentence was concurrent with other terms and did not increase aggregate

length of incarceration). We grant relief on Cintron’s fourth issue.

      In his fifth and final issue, Cintron claims his sentence was manifestly

excessive. We disagree.

      We review a sentencing court’s determination for an abuse of
      discretion. An abuse of discretion may not be found merely
      because an appellate court might have reached a different
      conclusion, but requires a result of manifest unreasonableness, or
      partiality, prejudice, bias, or ill-will, or such lack of support so as
      to be clearly erroneous. When reviewing sentencing matters, this
      Court must accord the sentencing court great weight as it is in
      best position to view the defendant’s character, displays of
      remorse, defiance or indifference, and the overall effect and
      nature of the crime.

Commonwealth v. Ventura, 975 A.2d 1128, 1133-34 (Pa. Super. 2009)

(citations omitted).

      It is well-settled that the right to appeal a discretionary aspect of
      sentence is not absolute. Rather, where an appellant challenges


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     the discretionary aspects of a sentence, an appellant’s appeal
     should be considered as a petition for allowance of appeal.

     An appellant challenging the discretionary aspects of his 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 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.A. § 9781(b).

     Whether a particular issue constitutes a substantial question about
     the appropriateness of sentence is a question to be evaluated on
     a case-by-case basis.

                                 *     *      *

     We have found that a substantial question exists 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.

     We cannot look beyond the statement of questions presented and
     the prefatory [Rule] 2119(f) statement to determine whether a
     substantial question exists. . . .

     When we examine an appellant’s Rule 2119(f) statement to
     determine whether a substantial question exists, our inquiry must
     focus on the reasons for which the appeal is sought, in contrast to
     the facts underlying the appeal, which are necessary only to
     decide the appeal on the merits. . . . A Rule 2119(f) statement is
     inadequate when it contains incantations of statutory provisions
     and pronouncements of conclusions of law.

Commonwealth v. Radecki, 180 A.3d 441, 467–68 (Pa. Super. 2018)

(emphasis added) (citations, footnote and other punctuation omitted).


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      “Generally, Pennsylvania law affords the sentencing court discretion to

impose its sentence concurrently or consecutively to other sentences being

imposed at the same time or to sentences already imposed. Any challenge to

the exercise of this discretion ordinarily does not raise a substantial question.”

Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011) (citation and

internal quotation marks omitted).

      Here, Cintron asserts in his Rule 2119(f) statement that the sentencing

court “failed to consider all relevant factors as set forth in Section 9721(b) of

the Sentencing Code (Title 42).” Appellants Brief, at 19.

      Instead of developing a colorable argument that the sentencing judge’s

actions were either inconsistent with a specific provision of the Sentencing

Code, or contrary to the fundamental norms which underlie the sentencing

process, in support of a substantial question, he opts for a catchall recitation

of numerous, undeveloped, frequently repetitive claims resembling the

incantations and conclusory pronouncements disapproved in Radecki: e.g.

“relevant sentencing criteria,” Appellant’s Brief, at 19, failure to consider “all

relevant factors” (id.), “all relevant factors” (id. at 20); consecutive

sentences, (id. at 20), “stacked enhancements” / consecutive sentences

above guideline (id. at 21), and so forth. Cintron complains the trial court’s

sentence only paid “lip service” to mitigation. (Id. at 19).

      The trial court correctly notes that mere assertions of excessiveness do

not raise a substantial question. See Trial Court Opinion, at 19 (collecting


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cases). It concludes that here Cintron failed to raise a substantial question on

his primary claim of excessiveness.      See Trial Court Opinion, at 19.    The

Commonwealth suggests a similar conclusion, citing Radecki, 180 A.3d at

468-470. See Commonwealth’s Brief, at 20. We also conclude that, under

Radecki, Cintron has failed to raise a substantial question.

      Moreover, even if we were to determine that Cintron’s discretionary

aspects of sentencing claim raised a substantial question, we still would

conclude that he is not entitled to relief.

      Cintron faults the sentencing court for not properly considering his

troubled childhood, the impact of deaths in the family, and older siblings who

led him into a life of crime. However, where, as here, the sentencing court

had the benefit of a pre-sentence investigation report, we can properly

assume the court was aware of the defendant’s character and weighed it along

with mitigating statutory factors. See Commonwealth v. Rhoades, 8 A.3d

912, 919 (Pa. Super. 2010).

      Cintron notes his relatively young age (twenty-four when the crimes

were committed; twenty-five at trial) in connection with the length of his

sentence. The trial court notes that Appellant was adjudicated delinquent five

times, arrested as an adult sixteen times, and incarcerated after five

convictions. See Trial Court Opinion, at 20. One of his arrests that did not

result in a conviction involved a sexual assault at gunpoint on a prostitute.

Charges were dismissed when the victim failed to appear for trial. The trial


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court notes that Cintron has failed repeated efforts at rehabilitation and

absconded from supervision.

      Here, Cintron attempted to rape two women, both strangers to him, at

gunpoint, off the street in pre-dawn hours while they were on their way to

work, within an hour of each other. He threatened murder. The first victim

managed to escape, but he succeeded the second time. Most but not all of

Cintron’s sentences were consecutive.        He is not entitled to a “volume

discount.” See Commonwealth v. Yeomans, 24 A.3d 1044, 1050 (Pa.

Super. 2011).

      Under our standard of review, an abuse of discretion may not be found

unless the trial court’s decision is “clearly erroneous.” Commonwealth v.

Walls, 926 A.2d 957, 961 (Pa. 2007) (citation omitted). “The rationale behind

such broad discretion and the concomitantly deferential standard of appellate

review is that the sentencing court is in the best position to determine the

proper penalty for a particular offense based upon an evaluation of the

individual circumstances before it.”(Id.) (citations and internal quotation

marks omitted).“Although Pennsylvania’s system stands for individualized

sentencing, the court is not required to impose the ‘minimum possible’

confinement.” Commonwealth v. Moury, 992 A.2d 162, at 171 (citation

omitted).

      Here, the trial court concluded that “[t]he sentence imposed properly

took into consideration the nature of the crime, the defendant’s character, and


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the defendant’s rehabilitative needs and the obligation to protect the public.”

Trial Court Opinion, at 23.     Under our deferential standard of review, we

discern no abuse of discretion in the trial court’s sentence, and we decline to

disturb it. Cintron’s fifth claim merits no relief.

      Appellant’s conviction for false identification to law enforcement is

reversed and the associated sentence vacated. In all other respects, we affirm

the judgment of sentence.

      President Judge Emeritus Gantman joins the majority.

      Judge Pellegrini files a concurring/dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/28/19




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