J-S21001-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

ROBERT ALVAREZ,

                          Appellant                  No. 1967 EDA 2013


             Appeal from the Judgment of Sentence June 28, 2013
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0010755-2010


BEFORE: BOWES, JENKINS, and PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED APRIL 10, 2015

       Robert Alvarez appeals from the aggregate judgment of sentence of

seventy-seven and one-half to 155 years incarceration after a jury found

him guilty of rape of a child, involuntary deviate sexual intercourse (“IDSI”)

of a child who is less than thirteen years of age, unlawful contact with a

minor, sexual assault, and corruption of a minor. We affirm.

       Louis Colon was walking at the Frankford High School football field in

Philadelphia with his friend Vanessa Gonzalez on July 3, 2010.          While

walking he became suspicious of a van in the area with a New York license

plate. Accordingly, he approached and peered inside. He saw a young boy

inside the van sitting atop a mattress. Mr. Colon also witnessed Appellant

exit the van before reentering. The van began to shake a little bit and Mr.

Colon heard whispering inside. Concerned, Mr. Colon telephoned the police.


*
    Retired Senior Judge assigned to the Superior Court.
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      Two officers, Officer Ryan Pownall and Officer Joanne Bondiskey

responded in separate vehicles. Mr. Colon alerted the officers to the van and

informed them that a small boy was being sexually assaulted.          Officer

Pownall opened the side door of the van and, upon tearing down a curtain,

he observed the victim kneeling on a mattress pulling up his pants. Behind

the victim, also attempting to pull up his pants, was Appellant.      Officer

Bondiskey confirmed that both Appellant and the victim had their pants

down and unzipped and that Appellant was attempting to pull up his pants.

      Officer Pownall pulled Appellant from the vehicle, who resisted and the

officer struck him three times in the face.   The police arrested Appellant,

whose pants, according to Mr. Colon and Ms. Gonzalez, were still below his

waist when he was removed from the van. Mr. Colon related that the victim

was crying, scared, and barefoot when police removed him from the van.

Officers Bondiskey and Pownall also provided that the victim was hysterical

and crying. Semen was found on the victim’s clothing, but DNA testing on

that evidence was not completed.

      The victim indicated to police that he knew Appellant, who was a

family friend.   According to the victim, he was playing basketball when

Appellant drove up and asked him if he wanted to go buy fireworks.       The

victim then asked his mother if he could go with Appellant. Appellant then

took the victim to McDonald’s, where they ate. Thereafter, Appellant drove


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to the Frankford High School football field area and parked his van.

Appellant entered the back of the van and put his penis in the victim’s

mouth. Additionally, the victim maintained that Appellant placed the victim’s

mouth on Appellant’s penis. In addition, he stated that Appellant licked his

anus and offered him $50 to have anal sex.

      The Commonwealth charged Appellant in its criminal complaint with

general charges of rape, IDSI, unlawful contact with a minor, unlawful

restraint, false imprisonment, statutory sexual assault, sexual assault,

endangering the welfare of a child (“EWOC”), simple assault, luring a child

into a motor vehicle, indecent assault, indecent exposure, corruption of a

minor, and recklessly endangering another person (“REAP”). That complaint

specified the allegations as follows:

            At or near 5000 Rutland Street the Defendant engaged in
      deviate sexual intercourse by forcible compulsion or threat of
      same with [B.R.] (12 years old) by luring the complainant into
      the back of his van for the purpose of engaging in a sexual
      offense with a minor. Once the defendant had the complainant
      in the back of his van, the Defendant pulled down his pants and
      forced the complainant to perform oral sex on him
      (complainant’s mouth on Defendant’s penis). The Defendant
      then pulled down the complainant’s pants and put his mouth on
      the complainant’s penis. The Defendant then inserted his tongue
      inside of the complainant’s anus and attempted to insert his
      penis inside of the complainant’s anus (at which time the
      Defendant was interrupted by police discovery of the Defendant’s
      actions).




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Criminal Complaint, 7/4/10, at 2.     Hence, Appellant was placed on notice

that he was being accused of engaging in improper sexual relations with a

child less than thirteen.

      At the conclusion of the preliminary hearing, the court held over

charges of rape by forcible compulsion, IDSI by forcible compulsion, unlawful

contact with a minor, unlawful restraint, statutory sexual assault, sexual

assault, false imprisonment, EWOC, luring a child into a motor vehicle,

corruption of a minor, indecent assault by forcible compulsion, indecent

exposure, simple assault, and REAP. Subsequently, the Commonwealth filed

a thirteen count criminal information.     In count one, the Commonwealth

charged Appellant pursuant to 18 Pa.C.S. § 3121(A)(1), and asserted that

Appellant engaged in sexual intercourse with a complainant by forcible

compulsion or “[w]here the complainant was less than 13 years of age.”

Criminal Information, 9/1/10, at 1. It further stated,

      Rape of a Child: Notice is hereby given that the Commonwealth
      further intends to proceed under 18 §§ 3121 (c), (d) & (e)
      providing that rape of a child less than 13 years of age shall be
      punishable by a maximum of 40 years imprisonment and rape of
      a child less than 13 years of age resulting in serious bodily injury
      shall be punishable by a maximum sentence of life
      imprisonment.

      Notice is hereby given that the Commonwealth intends to
      proceed under 42 Pa.C.S. § 9714 (relating to sentences for
      second and subsequent offenses).




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Id.     Similarly, in count two, the Commonwealth averred that Appellant

engaged in IDSI by forcible compulsion or with a complainant less than

thirteen years of age and further alleged,

        Involuntary Deviate Sexual Intercourse with a Child. Notice is
        hereby given that the Commonwealth further intends to proceed
        under 18 §§ 3123(b), (c) & (d) providing that involuntary
        deviate sexual intercourse with a child less than 13 years of age
        shall be punishable by a maximum of 40 years imprisonment
        and involuntary deviate sexual intercourse with a child less than
        13 years of age resulting in serious bodily injury shall be
        punishable by a maximum sentence of life of life imprisonment.

        Notice is hereby given that the Commonwealth intends to
        proceed under 42 Pa.C.S. § 9714 (relating to sentences for
        second and subsequent offenses).

Id.
        Appellant represented himself at trial, with the assistance of stand-by

counsel. Following the jury trial, the jury found Appellant guilty of rape of a

child, involuntary deviate sexual intercourse (“IDSI”) of a child who is less

than thirteen years of age, unlawful contact with a minor, sexual assault,

and corruption of a minor.1 The court then imposed sentence on June 28,

2013. Specifically, it imposed consecutive mandatory minimum sentences,

under 42 Pa.C.S. § 9714,2 of twenty-five to fifty years incarceration for the


____________________________________________


1
    The remaining charges were nolle prossed and did not go to the jury.
2
 Since the mandatory sentencing statute related solely to prior convictions
Alleyne v. United States, 133 S.Ct. 2151 (2013), this Court’s severability
(Footnote Continued Next Page)


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charges of rape of a child, IDSI of a person less than thirteen, and unlawful

contact with a minor.3 It further sentenced Appellant to two and one-half to

five years imprisonment for the corruption of a minor count. The court did

not impose a sentence for sexual assault.         Appellant did not file a post-

sentence motion, but timely appealed on July 9, 2013. The court appointed

new counsel for purposes of appeal and directed that a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal be filed and served on

the court.    Appellant complied, and the court authored its Rule 1925(a)

opinion. The matter is now ready for this Court’s review.4

    I.    Is the Defendant entitled to an arrest of judgment on the
          charge of [r]ape as the Commonwealth did not prove either
          [sic] charge beyond a reasonable doubt and there is
          insufficient evidence to sustain the verdict?


                       _______________________
(Footnote Continued)

decisions applying Alleyne, see Commonwealth v. Newman, 99 A.3d 86
(Pa.Super. 2014) (en banc), do not apply.
3
  Although the jury was charged and returned its verdict on charges of rape
of a child and IDSI of a child less than thirteen, the commitment papers and
sentencing order cited to rape by forcible compulsion and IDSI by forcible
compulsion. Appellant did not object to the court’s jury instructions, but at
sentencing claimed for the first time that the Commonwealth improperly
amended his criminal information. The trial court addressed this issue in its
Rule 1925(a) opinion, and Appellant has abandoned it on appeal.
4
 Appellant sought to proceed pro se before this Court. We remanded for a
Grazier hearing.       The trial court conducted such a proceeding and
determined that Appellant was not knowingly, intelligently, and voluntarily
waiving his right to counsel.



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   II.      Is the Defendant entitled to a new trial as the result of
            prosecutorial misconduct when the prosecutor argued
            “ejaculation” when ejaculation was never demonstrated nor
            proven during the Commonwealth’s case?

   III.     Is the Defendant entitled to a remand to the [s]entencing
            [c]ourt for a new [s]entencing [h]earing as the [c]ourt
            imposed a manifestly excessive sentence of 77 ½ to 155
            years which abused the discretion of the [c]ourt?

   IV.      Is the Defendant entitled to a remand to the [s]entencing
            [c]ourt for a new [s]entencing [h]earing as a result of legal
            errors in sentencing where the [c]ourt considered improper
            sentencing factors and did not confine its analysis to
            sentencing norms and more specifically where the [c]ourt said
            that it could “only imagine in terms of all the other children
            that he has abused.”

Appellant’s brief at 3.

         Appellant’s initial claim is a challenge to the sufficiency of the evidence

on the rape charge.       In performing such a review, we consider all of the

evidence admitted, even improperly admitted evidence. Commonwealth v.

Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc).                 We view the

evidence in a light most favorable to the Commonwealth as the verdict

winner, drawing all reasonable inferences from the evidence in favor of the

Commonwealth. Id.

         The evidence “need not preclude every possibility of innocence and the

fact-finder is free to believe all, part, or none of the evidence presented.”

Id.   When evidence exists to allow the fact-finder to determine beyond a

reasonable doubt each element of the crimes charged, the sufficiency claim


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will fail.   Id.    In addition, the Commonwealth can prove its case by

circumstantial evidence. Where “the evidence is so weak and inconclusive

that, as a matter of law, no probability of fact can be drawn from the

combined circumstances[,]” a defendant is entitled to relief. Id. This Court

does not “re-weigh the evidence and substitute our judgment for that of the

fact-finder.” Id.

       Appellant’s argument on appeal is different from the issue he leveled

in his Rule 1925(b) statement.    There, he asserted that the evidence was

insufficient under Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993),

i.e., the conviction was based on conjecture and mere surmise. However,

Appellant now maintains that an individual cannot be found guilty of both

rape and IDSI based on the same act. In essence, Appellant is leveling a

merger or double jeopardy type position.      Indeed, he contends that the

General Assembly did not intend for the same act to subject a person “to 50

to 100 years instead of 25 to 50 years in the state prison.” Appellant’s brief

at 8. He continues by noting that the trial court concluded that Appellant

was not subject to double jeopardy.

       To the extent Appellant is contesting that the evidence introduced

against him was insufficient to establish the elements of both crimes, that

issue is waived due to his failure to advance such a position.          While

Appellant’s actual argument here was not proffered below, insofar as it


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relates to merger and double jeopardy concerns, we address it as a non-

waivable illegal sentencing question.   See Commonwealth v. Kelly, 78

A.3d 1136 (Pa.Super. 2013).

     Appellant relies on Commonwealth v. Lee, 638 A.2d 1006 (Pa.Super.

1994).   Lee, however, supports his sentence for both rape and IDSI.      In

Lee, the defendant sodomized the victim twice and coerced the victim into

performing oral sex on two occasions.     The Commonwealth charged the

defendant with four counts each of rape and IDSI, and the court sentenced

him on all eight counts. In vacating the judgment of sentence, however, the

Lee Court recognized that separate acts can support multiple sentences.

See Lee, supra (citing Commonwealth v. Romanoff, 392 A.2d 881

(Pa.Super. 1978); Commonwealth v. Pifer, 425 A.2d 757 (Pa.Super.

1981); Commonwealth v. Adams, 442 A.2d 277 (Pa.Super. 1982);

Commonwealth v. Hitchcock, 565 A.2d 1159 (Pa. 1989)). The Lee panel

itself opined, “a defendant can commit multiple criminal acts during one

episode if he commits multiple penetrations.” Id. at 1013. Thus, Lee could

have been sentenced on four separate counts, but not eight.

     Appellant’s issue fails because he committed different acts to establish

each of the elements of rape of a child and IDSI of a person less than

thirteen. The child’s testimony was that Appellant performed oral sex on the

victim and made the victim conduct oral sex on Appellant, and Appellant


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licked his anus.    Each of these actions are separate acts that would

separately meet the requirements of rape of a child and IDSI of a child less

than thirteen.   Since multiple acts occurred, Appellant’s double jeopardy

styled claim for the two separate sentences fails.

      The second issue Appellant raises is that the prosecution committed

misconduct by asserting during argument that Appellant had ejaculated

where there was no evidence of this fact. We consider whether a new trial is

warranted based on prosecutorial misconduct under an abuse of discretion

standard.   See Commonwealth v. Culver, 51 A.3d 866, 871 (Pa.Super.

2012). Here, the Commonwealth introduced evidence that semen was found

on the victim’s clothing.   Thus, the prosecutor’s argument that Appellant

ejaculated is a fair inference from the evidence presented.       Appellant’s

position is frivolous and, in fact, he cites to no case law in support of his

position.

      Appellant’s final two issues in his statement of questions presented

implicate discretionary sentencing review. First, Appellant alleges that the

court erred in imposing a manifestly excessive sentence. Second, Appellant

maintains that the court erred in considering improper sentencing factors in

fashioning its sentence. We note that the argument portion of Appellant’s

brief for his third issue does not actually match the claim presented in his

statement of questions presented.


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      Appellant contends in the argument section of his brief that the court

improperly considered what Appellant may have done to other victims.

Further, Appellant posits that the court erred in considering his lack of

remorse. Each of these arguments do pertain to the discretionary aspects of

Appellant’s sentence, but he does not provide a Pa.R.A.P. 2119(f) statement

with respect to those claims.

      To      adequately   preserve   a     discretionary   sentencing   claim,   the

defendant must present the issue in either a post-sentence motion, or raise

the   claim    during   the   sentencing     proceedings.     Commonwealth         v.

Cartrette, 83 A.3d 1030, 1042 (Pa.Super. 2013) (en banc). Further, the

defendant must “preserve the issue in a court-ordered Pa.R.A.P. 1925(b)

concise statement and a Pa.R.A.P. 2119(f) statement.”              Id.    Thus, the

positions articulated in the third argument section of Appellant’s brief are

waived. Moreover, Appellant failed to preserve any sentencing issues in a

post-sentence motion.         Accordingly, Appellant’s additional discretionary

sentencing claims are waived.

      Judgment of sentence affirmed. Appellants Pro se Motion for Waiver of

Counsel – Second Application is Denied.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/10/2015




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