J-S14025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                             Appellee

                        v.

RAMON LUIS JUSINO, JR.,

                             Appellant              No. 1376 MDA 2016


             Appeal from the Judgment of Sentence May 10, 2016
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0000848-2015


BEFORE: GANTMAN, P.J., SHOGAN and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED APRIL 12, 2017

       Appellant, Ramon Luis Jusino, Jr., appeals from the judgment of

sentence entered following multiple convictions stemming from illegal sexual

contact he had with his daughter. We affirm.

       The trial court summarized the procedural history of this case as

follows:

             On January 27, 2016, after a four day jury trial,
       [Appellant] was convicted of one count of rape of a child,1 two
       counts of involuntary deviate sexual intercourse with a child,2
       one count of unlawful contact with a minor,3 one count of
       corruption of minors,4 one count of incest of a minor5 and one
       count of indecent assault.6
              1
                  18 Pa.C.S. § 3121(c).

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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           2
               18 Pa.C.S. § 3123(b).
           3
               18 Pa.C.S. § 6318(a)(1).
           4
               18 Pa.C.S. § 6301(a)(1)(ii).
           5
               18 Pa.C.S. § 4302(b)(1).
           6
               18 Pa.C.S. § 3126(a)(7).

           On May 10, 2016, after a presentence investigation,
     [Appellant] was sentenced to an aggregate term of 31 to 70
     years incarceration.

           On May 20, 2016, [Appellant] filed his motion to
     reconsider sentence. On July 12, 2016, [Appellant] filed an
     amended motion to reconsider sentence.        The motion was
     granted, and on August 5, 2016, [Appellant’s] sentence was
     modified to an aggregate term of 22 to 50 years incarceration.

           [Appellant] filed his notice of appeal on August 12, 2016.
     After being granted an extension of time, [Appellant] filed his
     statement of errors complained of on appeal on September 23,
     2016.

Trial Court Opinion, 10/5/16, at 1-2 (internal citations omitted).   The trial

court filed an opinion pursuant to Pa.R.A.P. 1925(a).

     Appellant presents the following issues for our review:

          A.     Whether the lower court erred when it overruled
     [Appellant’s] objection and found that the victim, A.H. was
     competent to testify at trial?

           B.   Whether the lower court erred in sustaining the
     Commonwealth’s objection and terminating counsel’s cross-
     examination which was attacking the credibility of the alleged
     victim?

           C.    Whether the lower court committed an abuse of
     discretion when it imposed an aggregate sentence of not less
     than 22 nor more than 50 years which was manifestly excessive
     and unduly harsh?

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Appellant’s Brief at 7 (full capitalization omitted).

      Appellant first argues that the trial court erred when it allowed the

victim, A.H., to testify at trial.    Appellant’s Brief at 21.   Appellant asserts

that the alleged victim failed all three prongs of the test used in determining

competency of a minor witness. Id. at 21-23.

      “The determination of a witness’s competency rests within the sound

discretion of the trial court.”      Commonwealth v. Judd, 897 A.2d 1224,

1228 (Pa. Super. 2006). “The decision of the trial court will not be disturbed

absent a clear abuse of that discretion; consequently, as the Superior Court

has previously observed, ‘our standard of review of rulings on the

competency of witnesses is very limited indeed.’” Id.

      In Pennsylvania, the general rule is that every witness is presumed to

be competent to be a witness.         Commonwealth v. Delbridge, 855 A.2d

27, 39 (Pa. 2003); Pa.R.E. 601(a).            However, young children must be

examined for competency pursuant to the following test:

      There must be (1) such capacity to communicate, including as it
      does both an ability to understand questions and to frame and
      express intelligent answers, (2) mental capacity to observe the
      occurrence itself and the capacity of remembering what it is that
      she is called to testify about and (3) a consciousness of the duty
      to speak the truth.

Delbridge, 855 A.2d at 39 (quoting Rosche v. McCoy, 156 A.2d 307, 310

(Pa. 1959)) (emphasis in original). A competency hearing is centered on the

inquiry into “the minimal capacity of the witness to communicate, to observe


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an event and accurately recall that observation, and to understand the

necessity to speak the truth.” Id. at 40.     Credibility is not an issue at a

competency hearing. Id.

      In addressing the competency of A.H. to testify, the trial court

provided the following analysis:

            The [c]ourt conducted a competency hearing outside the
      jury’s presence on the first day of trial to assess the minor
      victim’s capacity to testify. As part of this hearing, the [c]ourt,
      as well as the assistant district attorney and defense counsel,
      questioned the child. The child knew her date of birth, her grade
      in school at the time of the event, where the event had taken
      place, and what had been done to her. She knew the difference
      between things that were true and things that were made up,
      and the difference between the truth and a lie.          She also
      understood what happens if one lies and that one should not lie.
      At the end of the hearing, the [c]ourt asked “are you going to be
      able to tell us what happened when you lived at your father’s
      house?” to which the child responded affirmatively.

            In responding to defense counsel’s argument that the child
      was incompetent to testify because she was unable to provide an
      accurate time frame and failed to answer questions by saying “I
      don’t remember, I don’t want to remember. . . ,” the [c]ourt said

            Well, my concern is that the child appears more to
            be unwilling to testify rather than unable to testify. I
            don’t see much of a problem with the time frame. At
            her age she indicated she may have been between
            four and six, but she was able to say she was in first
            grade, which was consistent with the time frame we
            have now. . . . I did observe her very carefully while
            she was on the witness stand. She was constantly
            wringing her hands, constantly making furtive
            glances over to [Appellant]. And when she would
            indicate that she forgot various things that occurred,
            quite candidly, I do not believe she forgot, I believe
            she simply did not want to testify about what had
            occurred. . . . She does understand the difference
            between telling the truth and telling a lie. She does

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            understand the difference between something that is
            make believe and something that occurred. The
            issue with respect to her ability to recall events that
            happened to her, again, I don’t think the record
            shows she is unable to do that, it is more she is
            unwilling to do that.

            In addressing the child’s ability to answer questions, the
      [c]ourt further observed that when she was questioned by the
      assistant district attorney and defense counsel, who stood at the
      edge of the jury box so the child was not looking at [Appellant],

            she focused her attention on you, she was able to
            give much more responsive answers than when I
            spoke to her and she was constantly looking over at
            [Appellant]. And the more she would look over at
            him, the more she would wring her hands . . . I don’t
            have a great deal of concern with the matter you
            raised about her responses to the questions because
            when she kept saying I forgot or I don’t know I think
            she was just hoping that the whole thing would go
            away and she wouldn’t have to respond.

            Ultimately, observing that there is a difference between
      being unwilling to testify and being incompetent to testify, the
      [c]ourt concluded that the question was not one of the child’s
      competence to testify but, because of either the subject matter
      or [Appellant’s] identity, her willingness to do so.       Having
      questioned the child and having observed her as she was
      questioned by both the assistant district attorney and defense
      counsel, the [c]ourt did not abuse its discretion in determining
      that the child was competent to testify, or in overruling defense
      counsel’s objection to her competency.

Trial Court Opinion, 10/5/16, at 6-8 (internal citations omitted).

      The trial court’s analysis is supported by the record.     Based on the

certified record, we agree with the trial court’s conclusion that A.H. was

competent to testify and met the three prongs of the competency test for

minors.   Delbridge, 855 A.2d at 40.       As the trial court aptly recognized,


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A.H.’s hesitation to testify against her father, as reflected throughout the

competency hearing, did not compel the conclusion that she was not

competent to testify.    Thus, the trial court did not abuse its discretion by

concluding that A.H. was competent to testify. Appellant’s first claim fails.

      In his second issue, Appellant asserts that the trial court erred in

sustaining the Commonwealth’s objection and terminating counsel’s cross-

examination of the prosecuting police officer.         Appellant’s Brief at 23.

Appellant asserts that defense counsel was attempting to develop during his

examination of the officer that the victim’s recollection could be called into

question due to her immaturity. Id. at 23. Appellant posits that while the

trial court found A.H. competent to testify, it does not mean that her

testimony had to be believed. Id. at 24. Appellant argues that counsel had

a right to cross-examine the police officer, who observed various interviews

of the victim, in order to develop the record concerning her immaturity. Id.

at 24.     Appellant maintains that by sustaining the Commonwealth’s

objection, the trial court unfairly limited Appellant’s right to cross-examine

and impeach and thereby committed a manifest abuse of discretion. Id. at

24.

      “The scope of cross-examination is a matter left to the sound

discretion of the trial court, and the trial court’s rulings will not be disturbed

absent an abuse of discretion.” Commonwealth v. Boczkowski, 846 A.2d

75, 96 (Pa. 2004). Additionally, “[i]t is within the ordinary capacity of a jury


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to assess whether a particular witness is lying, and resolving questions of a

witness’s credibility is a function reserved exclusively for the jury.”

Commonwealth v. Boyd, 672 A.2d 810, 812 (Pa. Super. 1996).

            The veracity of a particular witness is a question which
      must be answered in reliance on the ordinary experiences of life,
      common knowledge of the natural tendencies of human nature,
      and observations of the character and demeanor of the witness.
      As the phenomenon of lying is within the ordinary capacity of
      jurors to assess, the question of a witness’s credibility is
      reserved exclusively for the jury.

Commonwealth v. Alicia, 92 A.3d 753, 761 (Pa. 2014) (quoting

Commonwealth v. Davis, 541 A.2d 315, 317 (Pa. 1988). Moreover, our

Supreme Court explained that:     “[w]e have consistently maintained that a

lay jury is capable of determining whether a witness is lying, and thus expert

testimony is not permissible as to the question of witness credibility.”

Alicia, 92 A.3d at 760. “Under Pennsylvania law, only evidence of a general

reputation for truthfulness in the community is admissible as character

testimony.    Thus, an individual’s opinion as to a witness’s ‘character for

truthfulness,’ no matter how well the individual knows the witness, is never

admissible in this Commonwealth.”     Commonwealth v. Smith, 567 A.2d

1080, 1082 (Pa. Super. 1989) (internal citations omitted).

      In Smith, the Commonwealth presented at trial the testimony of a

family therapist regarding the truth-telling ability of the seven-year-old

victim of indecent exposure and corruption of minors. Smith, 567 A.2d at

1081. This Court found that the appellant’s counsel erred in failing to object


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to the introduction of this testimony.      Id. at 1082.   This Court concluded

that “[b]y testifying as to the child’s character for telling the truth, the

Commonwealth witness usurped the credibility-determining function of the

jury.    This infringement upon the jury’s sacred domain prejudiced Smith

because the credibility of the alleged victim was the linchpin of the

Commonwealth’s case.”        Id. at 1083.    In support of this conclusion, we

explained:

               We find it unwise to create an exception to the credibility-
        determining function of the jury in a case in which an alleged
        child/victim testifies.     We do not dispute that an alleged
        child/victim of sexual abuse should have the opportunity to take
        the witness stand and tell his or her story. The competency
        considerations for child witnesses, repeatedly articulated in
        Pennsylvania, are designed to allow a child witness to testify
        merely if the child has the capacity to have observed the event
        giving rise to the litigation with a substantial degree of accuracy,
        can remember the event giving rise to the litigation, has the
        ability to understand questions and communicate answers, and
        has a consciousness of the duty to speak the truth.
        Furthermore, child witnesses, like all witnesses, are presumed
        competent to testify. From this testimony, the jury, doubtlessly
        taking into consideration the youth of the witness, can make a
        determination as to the veracity of the testimony and the
        credibility of the witness. We find improper, on the other hand, a
        situation in which an expert witness, or any witness for that
        matter, takes the witness stand and under the guise of
        “rehabilitation” proceeds to testify as to the credibility of the
        child/witness. To allow such testimony is to permit the unlawful
        usurpation of the credibility-finding function of the jury. This
        strikes at the heart of our system of justice.

Id. The panel further noted that “[w]e would have reached our conclusion

at bar if any Commonwealth witness presumed to give his or her personal

opinion as to the veracity of another witness[.]” Id.


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      In this case, defense counsel questioned the investigating officer,

Lancaster City Detective Gareth Lowe, as to his opinion on the recollection of

the minor victim. The following exchange occurred between defense counsel

and Detective Lowe during cross-examination:

      [Defense Counsel]:       The child also did state that she was
                               about four or five years old as well [at
                               the time of the abuse]?

      [Detective Lowe]:        She is nine years old when she took the
                               stand here, Counselor.

      [Defense Counsel]:       Right.

      [Detective Lowe]:        She is nine years old and I’m sure that
                               her recollection of how old she was when
                               her dad was doing these things to her,
                               probably, she doesn’t remember how old
                               she was.

      [Defense Counsel]:       But her recollection can be in question
                               because of her age?

N.T., 1/26/17, at 205. The prosecutor objected, stating:       “Objection, Your

Honor. Her testimony speaks for itself. She told the jury what grade she

was in, her age, that’s for the jury to consider.” Id. at 205. The trial court

sustained the objection and issued the following curative instruction:

      Ladies and gentlemen, as I told you before and I will tell you
      again in my final instructions, you are free to believe all, part, or
      none of the testimony of any witness. Your opinion is the only
      one that counts in this case. You will have to evaluate all of the
      testimony of the witnesses, using your common sense and
      human experience. You have to evaluate the child’s testimony,
      bearing in mind that she is nine years old at the time she got on
      the stand, she is talking about events that happened in the past.
      If you find her recitation is not reliable for any reason then you
      are free to disregard her testimony in its entirety, if you wish.

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      On the other hand, if you find that her testimony is reliable, then
      you are free to consider it. That is entirely up to you. The
      lawyers are not here to tell you what to think or what to believe,
      that is your responsibility and yours alone. I am not here to tell
      you what to think or what to do, again, it is your responsibility
      and yours alone.

N.T., 1/26/17, at 205-206.

      The sought-after testimony from Detective Lowe constituted an

impermissible attempt to usurp the jury’s role as the exclusive arbiter of

credibility.   Thus, the trial court properly sustained the Commonwealth’s

objection and prohibited this line of questioning of Detective Lowe on cross-

examination.     Accordingly, the trial court did not abuse its discretion in

sustaining this objection, thereby limiting the cross-examination of Detective

Lowe. Appellant’s second issue lacks merit.

      In his final issue, Appellant argues that the trial court committed an

abuse of discretion when it imposed an aggregate sentence of not less than

twenty-two nor more than fifty years, which was manifestly excessive and

unduly harsh.     Appellant’s Brief at 24.    Appellant asserts that he has a

documented history of mental health issues, was the product of an abusive

childhood, and had long term problems with drugs and alcohol. Id. at 26.

Appellant further argues that “[d]espite the fact that [Appellant] only had

one prior felony conviction, the [c]ourt saw fit to impose a sentence of not

less than 22 years incarceration.”      Id.     Appellant maintains that the

sentence violated the Sentencing Code’s language set forth in 42 Pa.C.S. §




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9721(b) because it did not take into account Appellant’s rehabilitative needs.

Id. at 27. Appellant contends that his sentence should be reversed. Id.

      Appellant’s issue challenges the discretionary aspects of his sentence.

We note that “[t]he right to appellate review of the discretionary aspects of

a sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d 127, 132

(Pa. Super. 2014). Rather, where an appellant challenges the discretionary

aspects of a sentence, the appeal should be considered a petition for

allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa.

Super. 2007).

      As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.

Super. 2010):

            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. [708]; (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).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.

Super. 2006)). The determination of whether there is a substantial question

is made on a case-by-case basis, and this Court will grant the appeal only


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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. Sierra, 752 A.2d 910, 912–

913 (Pa. Super. 2000).

      Herein, the first three requirements of the four-part test are met:

Appellant brought a timely appeal, raised the challenges in a post-sentence

motion, and included in his appellate brief the necessary separate concise

statement of the reasons relied upon for allowance of appeal pursuant to

Pa.R.A.P. 2119(f). Therefore, we next determine whether Appellant raises a

substantial question requiring us to review the discretionary aspects of the

sentence imposed by the trial court.

      “We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists.”      Commonwealth v. Ahmad, 961

A.2d 884, 886-887 (Pa. Super. 2008). In his Pa.R.A.P. 2119(f) statement,

Appellant argues that the trial court’s sentence is manifestly excessive and

unduly harsh given Appellant’s background and the circumstances of the

offense. Appellant’s Brief at 19-20. Appellant contends that the trial court

focused exclusively on the serious nature of the offense and failed to

consider the mitigating factors, specifically Appellant’s rehabilitative needs.

Id. at 20.     Appellant also argues that the imposition of consecutive

sentences resulting in the aggregate sentence of twenty-two to fifty years is


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unduly harsh and manifestly excessive.       Id.   This Court has held that a

challenge to the imposition of consecutive sentences as unduly excessive,

together with a claim that the trial court failed to consider the defendant’s

rehabilitative needs upon fashioning its sentence, presents a substantial

question.   Commonwealth v. Bonner, 135 A.3d 592, 604 (Pa. Super.

2016). Because Appellant has presented a substantial question, we proceed

with our analysis.

      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.   Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa.

Super. 2006). In this context, an abuse of discretion is not shown merely by

an error in judgment.      Id.    Rather, the appellant must establish, by

reference to the record, that the sentencing court ignored or misapplied the

law, exercised its judgment for reasons of partiality, prejudice, bias, or ill

will, or arrived at a manifestly unreasonable decision. Id.

            When imposing a sentence, the sentencing court must
      consider the factors set out in 42 Pa.C.S. § 9721(b), that is, the
      protection of the public, gravity of offense in relation to impact
      on victim and community, and rehabilitative needs of defendant,
      and it must impose an individualized sentence. The sentence
      should be based on the minimum confinement consistent with
      the gravity of the offense, the need for public protection, and the
      defendant’s needs for rehabilitation.

Id.   Guided by these standards, we must determine whether the court

abused its discretion by imposing a “manifestly excessive” sentence that

constitutes “too severe a punishment.”       Id.    Moreover, this Court has

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explained that when the “sentencing court had the benefit of a presentence

investigation report (‘PSI’), we can assume the sentencing court ‘was aware

of relevant information regarding defendant’s character and weighed those

considerations along with mitigating statutory factors.’” Moury, 992 A.2d at

171.

       In addressing this claim, the trial court explained its reasoning in

imposing Appellant’s sentence as follows:

              Although the sentences imposed were not in the
       aggravated range, the [c]ourt stated the reasons for its sentence
       on the record and in [Appellant’s] presence. The [c]ourt also
       identified the factors and materials considered in determining
       that sentence.      In particular, the [c]ourt considered the
       presentence report noting [Appellant’s] background, including
       his age, family background and upbringing, level of education,
       prior criminal record, history of substance abuse and substance
       abuse treatment, history of mental health issues and mental
       health treatment, and his employment history. The [c]ourt also
       considered the Sentencing Code and the sentencing guidelines,
       the circumstances of the offenses, the need to protect the public
       from such criminal conduct and [Appellant’s] rehabilitative
       needs. While [Appellant] offered no comment, counsel spoke on
       his behalf and the [c]ourt took that into account as well as the
       position of the Commonwealth.

              The [c]ourt noted that [Appellant] was not amenable to
       supervision and had failed to comply with the requirements
       imposed as demonstrated by his five probation and parole
       violations, and that [Appellant] had not seriously pursued
       treatment for his substance abuse or mental health issues. The
       [c]ourt also considered an aggravating factor that [Appellant]
       had “violated the duty of care, protection and support” owed to
       the child victim.

             These were extremely serious offenses perpetrated on a
       defenseless child over a period of time. It is evident from the
       record that the [c]ourt adequately considered all relevant


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      information in fashioning [Appellant’s] sentence. Therefore, his
      claims that the court abused its discretion are without merit.

Trial Court Opinion, 10/5/16, at 4-5 (internal citations omitted).

      As is reflected by the record, the trial court considered the protection

of the public, the gravity of the offense in relation to its impact on the victim

and community, and the rehabilitative needs of Appellant in sentencing

Appellant. Fullin, 892 A.2d at 847. Accordingly, we conclude that the trial

court did not abuse its discretion by imposing a manifestly excessive or

unduly harsh sentence.

      Moreover, the trial court had the benefit of a PSI.         Thus, we can

assume the sentencing court was aware of relevant information regarding

Appellant’s character and weighed those considerations along with mitigating

statutory factors. Moury, 992 A.2d at 171; see also Commonwealth v.

Fowler, 893 A.2d 758, 766 (Pa. Super. 2005) (“Since the sentencing court

had and considered a [PSI], this fact alone was adequate to support the

sentence, and due to the court’s explicit reliance on that report, we are

required to presume that the court properly weighed the mitigating factors

present in the case.”). Accordingly, Appellant’s argument that the trial court

failed to consider mitigating evidence, specifically his need for rehabilitation,

fails. See Moury, 992 A.2d at 171; Fowler, 893 A.2d at 766.




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     Judgment of sentence affirmed.

     Judge Strassburger joins the Memorandum.

     President Judge Gantman concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2017




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