J-S19001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
               v.                              :
                                               :
    LUIS EPIFANIO ROSARIO                      :
    MALDONADO                                  :
                                               :
                      Appellant                :       No. 1442 MDA 2016

            Appeal from the Judgment of Sentence October 27, 2015
                  In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0003858-2014


BEFORE:      GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY GANTMAN, P.J.:                             FILED APRIL 19, 2017

        Appellant, Luis Epifanio Rosario Maldonado, appeals nunc pro tunc

from the judgment of sentence entered in the York County Court of Common

Pleas, following his jury trial and conviction for involuntary deviate sexual

intercourse (“IDSI”), aggravated indecent assault, indecent assault, and

corruption of minors.1 We affirm and grant counsel’s petition to withdraw.

        The relevant facts and procedural history of this case are as follows.

On February 17, 2014, Appellant sexually assaulted a sixteen-year-old

female (“Victim”). On May 1, 2014, the Commonwealth charged Appellant

with rape, sexual assault, IDSI, aggravated indecent assault, indecent

____________________________________________


1
  18 Pa.C.S.A. §§ 3123(a)(2), 3125(a)(3), 3126(a)(3), and 6301(a)(1)(ii),
respectively.


_____________________________

*Former Justice specially assigned to the Superior Court.
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assault, unlawful restraint, and corruption of minors.

      Appellant proceeded to a jury trial on July 6, 2015.     At trial, Victim

testified that on the night of the incident she encountered Appellant at a

restaurant, where she had tried to charge her cell phone.      Victim walked

with Appellant to his house after he offered to let her charge her phone

there. When they arrived at Appellant’s house, Appellant told Victim to wait

in the basement while he spoke with his wife. Victim testified that when she

tried to leave, Appellant blocked the door and told her she could not leave.

      Victim testified that Appellant pushed her onto a sofa in the living

room, demanded she open her legs, and pushed her legs open when she

refused. Victim stated that when she cried, Appellant pointed a knife at her

and threatened to kill her unless she was quiet. Appellant then told Victim

to pull her pants down. When Victim refused, Appellant pulled Victim’s pants

down, forced her legs open, and performed oral sex on her. Victim testified

that Appellant forced her to lie on the kitchen floor, where he had sex with

her twice.   Afterwards, Appellant took Victim to the basement, where he

forced her to sit in a chair and again demanded she open her legs. When

Victim refused, Appellant pushed her legs open and had sex with her again.

Victim testified that she fled and called the police when Appellant left her

alone in the basement while he investigated a noise.

      Peter Eisert, the SAFE nurse who examined Victim after the incident,

also testified. Mr. Eisert said Victim had several injuries, including bruises


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on her neck and tenderness in her abdomen, neck, inner thighs, and mouth.

Mr. Eisert also observed a laceration on Victim’s labia, which appeared

recent. Mr. Eisert stated that although Victim was visibly upset when she

recounted the incident to him, she was a “good historian.”

      Detective Clarkson testified that he interviewed Victim during the

investigation. Victim identified the knife Appellant had used and accurately

described the layout of Appellant’s house.      Detective Clarkson said that

when he interviewed Appellant, Appellant assumed the police would arrest

him and told Detective Clarkson he was under the influence of cocaine

during the incident.   Detective Clarkson stated that Appellant changed his

story throughout the investigation. Appellant initially claimed Victim left his

house soon after she arrived, when Appellant went to speak with his wife.

Later, Appellant admitted that he had performed oral sex on Victim.

      Appellant testified that he had believed Victim was nineteen years old

at the time of the incident. Appellant stated he did not have sex with Victim,

but engaged only in consensual oral sex with her. Appellant said he was not

under the influence of cocaine during the incident. Appellant said he did not

know how Victim had been able to describe the layout of his house.

      Additionally, the parties stipulated to DNA evidence. Vaginal swabs of

Victim produced saliva DNA consistent with Appellant’s DNA. Seminal fluid

DNA   found   on   Victim’s   underwear,   however,   was    inconsistent   with

Appellant’s DNA.


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      On July 20, 2015, the jury convicted Appellant of IDSI, aggravated

indecent assault, indecent assault, and corruption of minors. On October 27,

2015, the court sentenced Appellant to concurrent terms of seven (7) to

fourteen (14) years’ incarceration for IDSI, four (4) to (8) years’

incarceration for aggravated indecent assault, one and a half (1½) to three

(3) years’ incarceration for indecent assault, and two (2) to four (4) years’

incarceration for corruption of minors.

      Appellant filed post-sentence motions on October 28, 2015, in which

he challenged the weight of the evidence.      The court denied Appellant’s

post-sentence motions on December 1, 2015. Appellant filed a timely notice

of appeal on December 29, 2015. This Court dismissed Appellant’s appeal

on July 13, 2016, for failure to file a timely brief.   On August 5, 2016,

Appellant filed and the court granted a motion to reinstate Appellant’s direct

appeal rights nunc pro tunc. Appellant filed a timely notice of appeal nunc

pro tunc on September 2, 2016. The court ordered Appellant on September

20, 2016, to file a concise statement of errors complained of on appeal per

Pa.R.A.P. 1925(b).     On October 11, 2016, Appellant’s counsel filed a

statement of intent to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4).

      As a preliminary matter, counsel seeks to withdraw his representation

pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d

493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349

(2009). Anders and Santiago require counsel to: 1) petition the Court for


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leave to withdraw, certifying that after a thorough review of the record,

counsel has concluded the issues to be raised are wholly frivolous; 2) file a

brief referring to anything in the record that might arguably support the

appeal; and 3) furnish a copy of the brief to the appellant and advise him of

his right to obtain new counsel or file a pro se brief to raise any additional

points the appellant deems worthy of review. Santiago, supra at 173-79,

978 A.2d at 358-61.          Substantial compliance with these requirements is

sufficient.   Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.

2007). After establishing that counsel has met the antecedent requirements

to withdraw, this Court makes an independent review of the record to

confirm that the appeal is wholly frivolous. Commonwealth v. Palm, 903

A.2d 1244, 1246 (Pa.Super. 2006).

       In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

              Neither Anders nor McClendon[2] requires that
              counsel’s brief provide an argument of any sort, let
              alone the type of argument that counsel develops in
              a merits brief.    To repeat, what the brief must
              provide under Anders are references to anything in
              the record that might arguably support the appeal.

                                       *       *   *

              Under Anders, the right to counsel is vindicated by
____________________________________________


2
    Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).



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            counsel’s examination and assessment of the record
            and counsel’s references to anything in the record
            that arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

            [I]n the Anders brief that accompanies court-
            appointed counsel’s petition to withdraw, counsel
            must: (1) provide a summary of the procedural
            history and facts, with citations to the record; (2)
            refer to anything in the record that counsel believes
            arguably supports the appeal; (3) set forth counsel’s
            conclusion that the appeal is frivolous; and (4) state
            counsel’s reasons for concluding that the appeal is
            frivolous.    Counsel should articulate the relevant
            facts of record, controlling case law, and/or statutes
            on point that have led to the conclusion that the
            appeal is frivolous.

Id. at 178-79, 978 A.2d at 361.

      Instantly, counsel filed a petition to withdraw.    The petition states

counsel conducted a conscientious review of the record and determined the

appeal is wholly frivolous.   Counsel also supplied Appellant with a copy of

the brief and a letter explaining Appellant’s right to retain new counsel or to

proceed pro se to raise any additional issues Appellant deems worthy of this

Court’s attention.   (See Letter to Appellant, dated 1/9/2017, attached to

Petition for Leave to Withdraw as Counsel.)     In the Anders brief, counsel

provides a summary of the relevant facts and procedural history of the case.

Counsel’s argument refers to relevant law that might arguably support

Appellant’s issue. Counsel further states the reasons for his conclusion that

the appeal is wholly frivolous. Therefore, counsel has substantially complied

with the requirements of Anders and Santiago.

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      Counsel raises the following issue on Appellant’s behalf:

         [WHETHER] THE TRIAL COURT ERRED IN DENYING
         APPELLANT A NEW TRIAL WHEN THE GREAT WEIGHT OF
         THE EVIDENCE DEMONSTRATED THAT…VICTIM WAS NOT
         CREDIBLE SUCH THAT THE JURY’S VERDICT “SHOCKS THE
         CONSCIENCE[?]”

(Anders Brief at 4).

      Essentially, Appellant argues his convictions were against the weight of

the evidence because they were largely based on Victim’s “incredible” trial

testimony. Appellant concludes this Court should grant him a new trial. We

disagree.

      Our standard of review for a challenge to the weight of the evidence is

as follows:

         The 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 determine the credibility of the witnesses. An
         appellate court cannot substitute its judgment for that of
         the finder of fact. Thus, we may only reverse the lower
         court’s verdict if it is so contrary to the evidence as to
         shock one’s sense of justice. Moreover, where the trial
         court has ruled on the weight claim below, an appellate
         court’s role is not to consider the underlying question of
         whether the verdict is against the weight of the evidence.
         Rather, appellate review is limited to whether the trial
         court palpably abused its discretion in ruling on the weight
         claim.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)

(internal citations omitted).

      The Pennsylvania Crimes Code defines IDSI in relevant part as follows:


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         § 3123. Involuntary Deviate Sexual Intercourse

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

                                   *     *   *

            (2) by threat of forcible compulsion that would
            prevent resistance by a person of reasonable resolution.

18 Pa.C.S.A. § 3123(a)(2).      Aggravated indecent assault is defined in

relevant part as follows:

         § 3125. Aggravated Indecent Assault

         (a)       Offense defined.—Except as provided in section
         3121 (relating to rape), 3122.1 (relating to statutory
         sexual assault), 3123 (relating to involuntary deviate
         sexual intercourse) and 3124.1 (relating to sexual
         assault), a person who engages in penetration, however
         slight, of the genitals or anus of a complainant with a part
         of the person’s body for any purpose other than good faith
         medical, hygienic or law enforcement procedures commits
         aggravated indecent assault if:

                                   *     *   *

            (3) the person does so by threat of forcible
            compulsion that would prevent resistance by a
            person of reasonable resolution.

18 Pa.C.S.A. § 3125(a)(3). The pertinent subsection of the indecent assault

statute provides:

         § 3126. Indecent Assault

         (a)     Offense defined.—A person is guilty of indecent
         assault if the person has indecent contact with the
         complainant, causes the complainant to have indecent
         contact with the person or intentionally causes the
         complainant to come into contact with seminal fluid, urine,

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         or feces for the purpose of arousing sexual desire in the
         person or the complainant and:

                                    *     *   *

            (3) the person does so by threat of forcible
            compulsion that would prevent resistance by a person
            of reasonable resolution.

18 Pa.C.S.A. § 3126(a)(3). Additionally, corruption of minors is defined in

relevant part as follows:

         6301. Corruption of minors

         (a)    Offense defined.—

         (1)(i) …

         (ii)    Whoever, being of the age of 18 years and upwards,
         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.

18 Pa.C.S.A. § 6301(a)(1)(ii).

      Instantly, Victim testified at trial that, despite her protests, Appellant

forced her legs open and performed oral sex on her.           She also stated

Appellant had nonconsensual sex with her several times.         Victim testified

that Appellant refused to allow her to leave his house and blocked the door

when she tried to flee.     Victim said Appellant threatened her with a knife

throughout the incident.     Mr. Eisert testified that he observed on Victim

several recent injuries, including a laceration on her labia and bruises on her

neck, thighs, and other body parts. Mr. Eisert also stated that Victim was a

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“good historian” when she recounted to him the details of the incident.

Detective Clarkson testified that during the police investigation, Victim

identified the knife Appellant had used and accurately described the layout

of Appellant’s house. Additionally, Appellant admitted at trial that he had

performed oral sex on Victim. DNA evidence taken from the Victim’s vagina

tested positive for Appellant’s saliva.

      The evidence demonstrated that Appellant had sexual contact with

Victim, a minor. The testimony of Victim, Mr. Eisert, and Detective Clarkson

also showed that Appellant both threatened Victim with force and injured her

during the incident.    Consequently, the Commonwealth established each

element of the offenses at issue.         See 18 Pa.C.S.A. §§ 3123(a)(2),

3125(a)(3), 3126(a)(3), and 6301(a)(1)(ii), supra. To the extent Appellant

complains the jury gave undue weight to Victim’s testimony, the jury was

free to believe all, part, or none of the evidence. See Champney, supra.

The trial court concluded the jury’s verdict was not against the weight of the

evidence. (See N.T. Post-Sentence Motion Hearing, 12/1/15, at 4.) Based

upon the foregoing, we see no abuse of discretion in the court’s decision to

deny relief on Appellant’s weight claim. Following our independent review of

the record, we conclude the appeal is frivolous.         See Palm, supra.

Accordingly, we affirm the judgment of sentence and grant counsel’s petition

to withdraw.

      Judgment of sentence affirmed; petition to withdraw is granted.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/19/2017




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