J-A22012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT
                                                              OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

    ALEJANDRO SANCHEZ-TORRES,

                             Appellant                  No. 526 EDA 2018


        Appeal from the Judgment of Sentence Entered August 29, 2017
                In the Court of Common Pleas of Chester County
             Criminal Division at No(s): CP-15-CR-0004708-2015


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

MEMORANDUM BY BENDER, P.J.E.:                     FILED DECEMBER 20, 2018

        Appellant, Alejandro Sanchez-Torres, appeals from the judgment of

sentence of an aggregate term of 32-65 years’ incarceration, imposed

following his conviction for a number of sexual offenses committed against a

minor. After careful review, we affirm.

        The trial court briefly summarized the facts of this case as follows:

               The charges against [Appellant] and [his] co-defendant[,
        Carolina Lemus-Almanza,] were the result of an investigation that
        began on October 13, 2015, after a third party discovered
        disturbing Facebook instant messages between [Appellant] and
        [his] co-[d]efendant about sexual acts they performed on the then
        2[-]year[-]old victim. The discovery was reported immediately to
        the police. When questioned by police, the co-defendant
        confessed to committing these sexual acts on the victim for sexual
        gratification. Further investigation found that the sexual assaults

____________________________________________


*   Former Justice specially assigned to the Superior Court.
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      began when the victim was six months old and continued for one-
      and–a-half years.

Trial Court Opinion (TCO), 4/5/18, at 17-18. Ms. Lemus-Almanza testified

against Appellant at his trial. Her testimony was consistent with the following

facts set forth at her plea hearing:

      Carolina Lemus-Almanza, along with her boyfriend, [Appellant],
      engaged in the sexual abuse of [Lemus-Almanza’s] biological
      daughter, ASL, from, approximately, January 1st of 2014 through
      October 13th, 2015, in Kennett Square, Chester County, when the
      victim was between the ages of six months to two years old. The
      sexual abuse occurred at [Lemus-Almanza]’s two different
      residences. …

             Both co-defendants digitally penetrated the child’s vagina
      and rectum on multiple occasions, and touched the child’s sexual
      or intimate body parts with their hands and mouths; both took
      naked images of the child for their sexual gratification with their
      cell phones. [Lemus-Almanza] sent [Appellant] numerous naked
      images of the child in a variety of lewd and lascivious poses upon
      his request.

             During the year and a half of abuse, they would routinely
      place the child on their bodies while they engaged in sexual
      intercourse with each other and would also touch the child’s sexual
      or intimate body parts simultaneously.

             [Appellant] solicited [Lemus-Almanza] to allow him to
      engage in vaginal and anal intercourse with the child. This
      solicitation was made through a Facebook exchange between the
      co-defendants in mid-October, 2015, but, according to [Lemus-
      Almanza], did not happen because on or around October 12th,
      2015, a friend of [hers] discovered this Facebook conversation,
      along with the images of the child that were in a private
      conversation between the two on their Facebook accounts where
      they discussed other sexual acts they were interested in
      performing on the child, including oral, vaginal, and anal sex.

            This friend reported that [conversation] to the police the
      following day and the Facebook messages between the two and
      the naked images of the child were recovered by police.



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             On October 13th, 2015, Chester County Detective Oscar
       Rosado, who then worked at the Kennett Square Police
       Department, interviewed [Lemus-Almanza]. She admitted that
       she had taken naked images of her daughter and sent them to the
       [Appellant] for his sexual gratification upon his request. She
       confessed that she had touched her daughter’s vagina with her
       fingers and on multiple occasions with her mouth. She also told
       the officer that she needed help.

             She stated that [Appellant] also touched the victim’s vagina
       and anus with his fingers. [Lemus-Almanza] also indicated she
       had touched the child’s anus with her fingers as well [as her]
       mouth on multiple occasions, and that [Appellant] had taken at
       least eight or nine naked images of the child while in [her]
       presence.

             [Lemus-Almanza] later disclosed that she and the co-
       defendant engaged in sexual assaults of the victim almost every
       time they had sex, which occurred, approximately, one to two
       times a week for over a year and a half.

Id. at 18-19 (quoting N.T. Co-defendant’s Plea, 6/2/16, at 4-7).

       The Commonwealth ultimately filed an amended criminal information1

charging Appellant with the following offenses:

       [T]en counts of involuntary deviate sexual intercourse [“IDSI”], in
       violation of 18 Pa.C.S.[] § 3123(b); five counts of aggravated
       indecent assault, in violation of 18 Pa.C.S.[] § 3125(a)(1) and (b);
       five counts of indecent assault, in violation of 18 Pa.C.S.[] §
       3126(a)(7); unlawful contact with minor, in violation of 18
       Pa.C.S.[] § 6318(a)(1); corruption of minors, in violation of 18
       Pa.C.S.[] § 6301(a)(1)(ii); three counts of sexual abuse of
       children, in violation of 18 Pa.C.S.[] § 6312(d); criminal
       solicitation of rape of a child, in violation of 18 Pa.C.S.[] §§ 902
       and 3121(c); and seven counts of conspiracy, in violation of 75
       Pa.C.S.[] § 903(c).



____________________________________________


1 The Commonwealth had initially charged Appellant with numerous counts of
incest with minor, 18 Pa.C.S. § 4302(b)(1), before withdrawing those counts
when it was discovered that he was not the biological father of the victim.

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J-A22012-18



Id. at 2. However, “the Commonwealth did not proceed at trial on the counts

of corruption of minors or conspiracy to commit corruption of minors.” Id.

      Appellant’s trial began on January 9, 2017, and concluded on January

12, 2017, when the jury convicted Appellant on all counts. On August 29,

2017, the trial court sentenced Appellant as follows:

      Count 1—[IDSI] with a child—a term of imprisonment of 20 to 40
      years.

      Counts 2-10—[IDSI] with a child—a term of imprisonment of 20
      to 40 years, concurrent with count 1.

      Count 11—aggravated indecent assault of a child—a term of
      imprisonment of 5 to 10 years, consecutive to count 1.

      Counts 12-15—aggravated indecent assault of a child—a term of
      imprisonment of 5 to 10 years, concurrent with count 11 and
      consecutive to count 1.

      Counts 16-20—indecent assault of a child less than 13 years of
      age—a term of imprisonment of 1 to 2 years to be served
      concurrent with count 1.

      Count 21—unlawful contact with a minor—a term of imprisonment
      of 5 to 10 years, consecutive to count 11.

      Counts 23-25—sexual abuse of children—a term of imprisonment
      of 1 to 2 years to be served concurrent with count 1.

      Count 26—criminal solicitation of rape of a child—a term of
      imprisonment of 5 to 10 years to be served concurrent with count
      1.

      Count 27—conspiracy to commit involuntary deviate sexual
      intercourse with a child—a term of imprisonment of 5 to 10 years
      to be served concurrent with count 1.

      Count 28—conspiracy to commit aggravated indecent assault of a
      child—a term of imprisonment of 3 to 6 years, to be served
      concurrent with count 1.




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      Count 29—conspiracy to commit indecent assault of a child less
      than 13 years of age—a term of imprisonment of 1 to 2 years to
      be served concurrent with count 1.

      Count 30—conspiracy to commit unlawful contact with a minor—
      a term of imprisonment of 2 to 5 years to be served consecutive
      to count 21.

      Count 32—conspiracy to commit sexual abuse of children
      (possession of child pornography)—a term of imprisonment of 1
      to 2 years to be served concurrent with count 1.

      Count 33—conspiracy to commit sexual abuse of children
      (dissemination of child pornography)—a term of imprisonment of
      1 to 2 years to be served concurrent with count 1.

Id. at 4. Thus, Appellant was sentenced to an aggregate term of 32-65 years’

incarceration. He filed a timely post-sentence motion on August 30, 2017,

and an amended post-sentence motion by leave of court on December 8,

2017, which was denied on January 22, 2018.

      Appellant filed a timely notice of appeal on February 14, 2018. He filed

a timely, court-ordered Pa.R.A.P. 1925(b) statement on February 27, 2018.

The trial court issued its Rule 1925(a) opinion on April 5, 2018. Appellant now

presents the following questions for our review:

      1. Whether the trial court’s sentence was excessive, given the
      similarity of conduct engaged in by [A]ppellant, as compared to
      that encompassed in the counts to which the co-defendant ple[]d
      guilty, as well as the lack of any statement by the court, on the
      record, explaining the reasons for the disparity of sentences
      imposed?

      2. Was there insufficient evidence of the essential element of
      “penetration” for the offense of [IDSI]?

      3. Was there insufficient evidence presented from which the jury
      could have properly concluded that [A]ppellant committed ten
      (10) counts of IDSI?



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J-A22012-18



Appellant’s Brief at 7.

      We first address the Commonwealth’s claim that Appellant waived both

of his sufficiency arguments, questions 2 and 3 above, due to his failure to

raise those claims in his Rule 1925(b) statement. We are compelled to agree.

All three claims raised in Appellant’s 1925(b) statement concerned sentencing

issues.    Appellant’s Rule 1925(b) Statement, 2/27/18, at 1 (single

unnumbered page). No claims raised therein addressed the sufficiency of the

evidence. See id. Thus, Appellant’s sufficiency claims have been waived.

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not

raised in a 1925(b) statement will be deemed waived.”).

      Appellant’s remaining claim asserts that the trial court erred because it

failed to justify why he received a substantially longer sentence than his co-

defendant, who had engaged in nearly identical criminal conduct, but who was

only sentenced to an aggregate term of 18-36 years’ incarceration.          See

Appellant’s Brief at 11.     This argument constitutes a challenge to the

discretionary aspects of Appellant’s sentence.

             Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. Commonwealth v.
      Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). 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

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J-A22012-18


        from is not appropriate under the Sentencing Code, 42
        Pa.C.S.[] § 9781(b).

     Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
     appeal denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal
     citations omitted). Objections to the discretionary aspects of a
     sentence are generally waived if they are not raised at the
     sentencing hearing or in a motion to modify the sentence imposed.
     Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003),
     appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

           The determination of what constitutes a substantial question
     must be evaluated on a case-by-case basis. Commonwealth v.
     Paul, 925 A.2d 825, 828 (Pa. Super. 2007). A substantial
     question exists “only when the appellant advances a colorable
     argument that the sentencing judge’s actions were either: (1)
     inconsistent with a specific provision of the Sentencing Code; or
     (2) contrary to the fundamental norms which underlie the
     sentencing process.” Sierra, supra at 912-13.

           As to what constitutes a substantial question, this Court
     does not accept bald assertions of sentencing errors.
     Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.
     2006). An appellant must articulate the reasons the sentencing
     court’s actions violated the sentencing code. Id.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).

     We note that Appellant initially preserved this claim in his post-sentence

motion. See Appellant’s Amended Post-Sentence Motion, 12/8/17, at 1 ¶¶ 1-

2. He filed a timely notice of appeal, and further preserved the issue in his

Rule 1925(b) statement. Appellant also provides a Rule 2119(f) statement in

his brief. Appellant’s Brief at 11. However, the Commonwealth contends that

Appellant fails to present a substantial question for our review. We agree.

     First, Appellant does not identify how any disparity between his and his

co-defendant’s sentence is inconsistent with a specific provision of the

Sentencing Code. No provision of the code, to our knowledge, dictates that


                                    -7-
J-A22012-18



co-defendants engaging in similar conduct should receive similar sentences.

Indeed, we are unaware of any provision of the code that suggests that the

sentence of a co-defendant is a relevant factor at a defendant’s sentencing

hearing, either substantively or procedurally. Therefore, Appellant’s assertion

that the court was somehow required to issue a statement explaining a

disparity with his co-defendant’s sentence has no foundation in the Sentencing

Code.

        Second, disparity in sentencing between co-defendants, even for those

who commit similar crimes, is not contrary to the fundamental norms that

underlie the sentencing process. To the contrary, the relevant fundamental

norm underlying the sentencing process is our courts’ commitment to

individualized    sentences.      As   our   Supreme    Court   explained    in

Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988),

        Courts are not permitted to mete out punishment based on the
        mere fact of the crime. On the contrary, sentencing must result
        both from a consideration of the nature and circumstances of the
        crime as well as the character of the defendant. The sentencer
        has broad discretion to choose a penalty from sentencing
        alternatives and the range of permissible confinements, provided
        the choices are consistent with the protection of the public, the
        gravity of the offense, and the rehabilitative needs of the
        defendant. Discretionary sentencing, in sum, means that a
        defendant cannot be punished on the basis of the crime alone.

Id. at 13.

        Here, Appellant essentially argues the opposite—that the similarity in

crimes committed by he and his co-defendant demand similar sentences. No

such principle constitutes a fundamental norm underlying the sentencing


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process.   Accordingly, because we agree with the Commonwealth that

Appellant has failed to articulate that he presents a substantial question for

our review, we lack jurisdiction to review his discretionary aspects of

sentencing claim.

      Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/18




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