Commonwealth v. Gonzalez

J-S78026-14

2015 PA Super 13

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DAVID JOSEPH GONZALEZ

Appellant No. 448 MDA 2014

Appeal from the Judgment of Sentence December 18, 2013

In the Court of Common Pleas of Franklin County

Criminal Division at No(s): CP-28-CR-0001103-2011

BEFORE: GANTMAN, P.J., JENKINS, J., and MUSMANNO, J.

OPINION BY JENKINS, J.: FILED JANUARY 21, 2015

David Gonzalez met K.M., a cerebral palsy patient,1 on a Christian

dating website. On March 8, 2011, after dating for several months, they had

sexual intercourse. K.M. claimed that Gonzalez raped her; Gonzalez claimed

that she consented to intercourse. The jury believed K.M. and found

Gonzalez guilty of rape,2 aggravated indecent assault3 and sexual assault.4

The trial court sentenced Gonzalez to an aggregate sentence of 4-15 years’

imprisonment. Gonzalez filed a motion for post-trial relief and timely post-

____________________________________________

1

We will refer to K.M. either as “K.M.” or “the victim”.

2

18 Pa.C.S. § 3121.

3

18 Pa.C.S. § 3125.

4

18 Pa.C.S. § 3124.1.

J-S78026-14

sentence motions, all of which the trial court denied, and then a timely

notice of appeal. Both Gonzalez and the trial court complied with Pa.R.A.P.

1925. For the reasons articulated below, we affirm.

Gonzalez raises six issues in this direct appeal:

I. THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE

VERDICTS OF GUILT AS TO THE CRIMES OF RAPE,

AGGRAVATED INDECENT ASSAULT AND SEXUAL

ASSAULT[,] AS THE COMMONWEALTH FAILED TO

PROVE [GONZALEZ’S] GUILT BEYOND A

REASONABLE DOUBT.

II. THE VERDICTS OF GUILT AS TO THE CRIMES OF

RAPE, AGGRAVATED INDECENT ASSAULT AND

SEXUAL ASSAULT ARE AGAINST THE WEIGHT OF

THE EVIDENCE.

III. THE PRETRIAL COURT ERRED WHEN IT DENIED

A MOTION IN LIMINE TO PRECLUDE THE

INTRODUCTION OF THE AUDIO TAPE OF [K.M.’S]

STATEMENT.

IV. THE PRETRIAL COURT ERRED WHEN IT BARRED

TESTIMONY CONCERNING THE MENTAL HEALTH

DIAGNOSES OF [K.M.]

V. THE TRIAL COURT ERRED WHEN IT ALLOWED THE

COMMONWEALTH TO READ THE CONTENTS OF

[K.M.’S] PRELIMINARY HEARING TESTIMONY.

VI. THE SENTENCES IMPOSED ARE UNREASONABLE,

EXCESSIVE AND NOT REFLECTIVE OF [GONZALEZ’S]

CHARACTER, HISTORY AND CONDITION.

Gonzalez’s first argument is a challenge to the sufficiency of the

evidence. Our standard of review for such challenges is well-settled:

[W]hether[,] viewing all the evidence admitted at

trial in the light most favorable to the

[Commonwealth as the] verdict winner, there is

-2-

J-S78026-14

sufficient evidence to enable the fact-finder to find

every element of the crime beyond a reasonable

doubt. In applying [the above] test, we may not

weigh the evidence and substitute our judgment for

the fact-finder. In addition, we note that the facts

and circumstances established by the

Commonwealth need not preclude every possibility

of innocence. Any doubts regarding a defendant’s

guilt may be resolved by the fact-finder unless the

evidence is so weak and inconclusive that as a

matter of law no probability of fact may be drawn

from the combined circumstances. The

Commonwealth may sustain its burden of proving

every element of the crime beyond a reasonable

doubt by means of wholly circumstantial evidence.

Commonwealth v. Troy, 832 A.2d 1089, 1092 (Pa.Super.2003) (citations

omitted).

The trial court recounts the evidence adduced at trial as follows:5

The above convictions arose out of an incident that

occurred on March 8, 2011. The victim was twenty-

five years old at the time and suffers from cerebral

palsy. Her cerebral palsy causes her to have

‘stiffness and tightening of the muscles’ in her legs

and she needs crutches to walk. She testified that if

she were lying on the floor, she could pull herself up

if she had something to pull herself up on. When

asked whether she could bend her knees normally,

she testified ‘[n]ot on my own. If I had to bend my

knees, I would either need to use my hands or have

someone to help me.’ When asked if she could

easily spread her legs apart, she responded, ‘[n]o,’

and said ‘[t]hey have to be pushed apart.’ The

victim also testified that ‘I can't spread my legs far

____________________________________________

5

The narrative in the trial court opinion has 73 citations to the record. For

convenience, we group these citations into footnotes 6-14 below.

-3-

J-S78026-14

enough to get [a tampon] in,’ and has to use pads

during her period.6

The victim and [Gonzalez] met each other on a

Christian dating website in August 2010. They met in

person in September of that year, but [Gonzalez]

soon left the area to pursue a position as a youth

minister in New York. They reestablished a

relationship when he returned in December 2010,

and began seeing each other. On March 7, 2011,

[Gonzalez] picked up the victim and took her to the

mall. They discussed their religious beliefs, and the

victim testified that ‘I had told [Gonzalez] that I was

a virgin and didn’t plan on having sex before I was

married.’ She further testified that he responded by

saying ‘something along the lines. . .of praise the

Lord.’ She also said that he told her he was not a

virgin. That evening, they kissed and hugged. The

victim also testified that [Gonzalez] asked her to be

his girlfriend, and she agreed7.

On March 8, 2011, [Gonzalez] picked up the victim

from her physical therapy appointment around 2:30

p.m. They stopped to get food and went to

[Gonzalez]’s apartment to watch a movie. This was

the first time the victim had been to [Gonzalez]’s

apartment. They sat down on the couch and began

watching the movie. The victim testified that she

started kissing [Gonzalez] and they both began

touching and rubbing one another’s genitals over

their clothes. This lasted for about half an hour.

Eventually, the victim noticed that [Gonzalez] was

erect. Next, the victim testified that [Gonzalez]

asked her if she wanted to go to the bedroom, to

which she agreed. The victim ‘assumed that we

would continue doing what we were doing in the

living room in the bedroom. . .[b]ecause . . .

[Gonzalez] knew that I didn’t want to have sex

____________________________________________

6

N.T., 9/3/13, pp. 58-62, 77.

7

N.T., 9/3/13, pp. 64-71.

-4-

J-S78026-14

before I was married.’ Before they moved, the

victim testified that [Gonzalez] took her phone out of

a pouch connected to her jeans and placed it on a TV

tray in the living room. The victim then got her

crutches, got off the couch, and walked to

[Gonzalez]’s bedroom. Once in the bedroom, she

noticed a bare mattress against the wall with no

furniture surrounding it. [Gonzalez] then either

helped her sit on the mattress or she sat down

herself. The victim testified that [Gonzalez] ‘took my

crutches [and] put them out of reach. I didn’t see

exactly where he put them. But I know it was out of

reach.’ The victim lay down by herself. When asked

‘is there any way you could have gotten up from that

point?’ She responded ‘no.’8

The victim testified that [Gonzalez] then removed

her jeans and underwear, and lay on top of her. The

victim did not say anything while [Gonzalez] took off

her pants and underwear, but when he lay on top of

her, she said ‘no, don’t.’ When he lay on top of her,

her legs were flat, straight, and unopened because ‘I

can’t open my legs by myself.’ 9

Next, the victim testified that [Gonzalez] got on his

knees and forced her legs apart ‘with his hands and

put them on his shoulders. And he had his hands

cuffed around my ankles.’ She testified that ‘[h]e put

my ankles around his shoulders.’ ‘He bent [her

knees] because they were up on his shoulders.’ She

then felt his penis inside her, and she ‘kept saying

ow.’ [Gonzalez] told the victim she ‘had to be quiet.’

The victim testified that at some point [Gonzalez]

took her legs off his shoulders and put his finger in

her vagina. He then put her legs back on his

shoulders and penetrated her again with his penis.

The victim was asked if she tried at all to kick off

[Gonzalez] during the penetration. She responded, ‘I

____________________________________________

8

N.T., 9/3/13, pp. 71-79, 120-122, 132-134, 162.

9

N.T., 9/3/13, pp. 79-82, 123.

-5-

J-S78026-14

couldn’t move my legs. My legs don’t move like that.’

When asked if she tried to push him off, she said,

‘[n]o. . . because he’s too big. And I was scared.’10

When asked how the penetration felt, the victim

responded, ‘It felt like someone was mutilating me

with a sharp object.’ At some point, [Gonzalez]

suddenly stopped, and the encounter ended. There

was blood on the mattress and blood on the victim’s

underwear after she put them back on. The victim

testified that after she got dressed, [Gonzalez] said

to her, ‘I’m sorry. I have a weakness.’11

During cross-examination, defense counsel inquired

into the victim’s mobility. The victim attended

Lancaster Bible College and when asked if she could

walk around the campus independently, she

responded, ‘with crutches, yes.’ The victim later

testified on redirect that she has ‘people to help me

carry’ books and things, and she needs assistance to

open doors. Defense counsel further inquired into

the victim’s relationship with [Gonzalez], asking her

about a Facebook post she had made on March 7,

2011 which read, ‘I went out with an awesome guy

tonight. I have known him since August. We’ve

chatted off and on for months. And he officially

asked me to be his girlfriend this evening. We are

going out again tomorrow. And I’m in like with

David Gonzalez.’ Furthermore, when asked if she

had any bruises from the incident the victim

responded: ‘No, I don’t think I did.’ The victim also

testified that [Gonzalez] did not hit, kick, grab, push,

gag, or punch her or use his fists or a weapon.

Defense counsel asked why the victim and

[Gonzalez] moved to the bedroom when they were

already making out in the living room. The victim

responded, ‘there was no purpose. I didn’t think I

was in any danger with David. I saw him - I thought

____________________________________________

10

N.T., 9/3/13, pp. 82-84, 125.

11

N.T., 9/3/13, pp. 84-85, 88, 94, 133.

-6-

J-S78026-14

he was an honest person.’ Defense counsel asked,

‘So for the record, it never crossed your mind that at

that point, you were moving to the bedroom for sex.

It never crossed your mind?’ The victim responded,

‘No, ma’am.’12

Alternatively, [Gonzalez] testified that the encounter

was consensual. He said that when he and the victim

went out on March 7, 2011 and he confessed he was

not a virgin, she told him she was not a virgin either,

and was not proud of that fact. On the day of the

incident, March 8, 2011, [Gonzalez] agreed that

while they were in the living room, [the victim]

started kissing him and he kissed her back. He also

agreed that they both started touching each other

intimately over their clothes, and then he ‘asked [the

victim] if she wanted to go to the bedroom. She

agreed. [The victim] got up, and she went first. I

went behind [the victim]. I followed after her. Then

we went into the bedroom together.’ [Gonzalez]

testified about the events in the bedroom in the form

of a narrative:

We were kissing each other. . . . We stood --

we were kissing. [The victim] was still fondling

my penis. . . [The victim] then sat down on the

bed. [The victim] then asked me to take my

pants off. She asked me — she leaned back.

And she asked me to help her with her jeans.

She also [asked] with her motions, as well as

asking me verbally, to help her with her pants.

I did that and her panties. [The victim] laid

her canes on the other side of the bed flat on

the bed. And so I asked [the victim] if I can—

well, l was going to lay next to [the victim].

[The victim] was on one side of the bed [and]

the canes were on the other side of the bed. I

asked [the victim] if I can move the canes

towards the right or the left. [The victim] said

fine. I laid next to [the victim]. And we were

____________________________________________

12

N.T., 9/3/13, pp. 100, 108, 158-163.

-7-

J-S78026-14

kissing. [The victim], we were laying next to

each other. We were kissing. [The victim] was

still fondling me. [The victim] then asked me if

I could rub my penis against her vagina. And I

did that. While I was doing that, I was kind

of—went on the side. I was basically with my

hand trying to rub my penis against her

vagina. After that, I moved over kind of

almost on top of her. I started grinding. I

started rubbing my penis without my hands.

Before I was—before I did that, I did touch

[the victim] with my finger while I was

rubbing. [The victim] got - she got aroused.

She started saying my name. And I asked her

if she was okay. She said she was fine. After I

was on top of [the victim], [the victim] asked

me to spread her legs a little bit. That’s what I

did. And I was rubbing my penis without my

hands on her vagina. After that, I then asked

[the victim] if I could penetrate her. . .the

word I used, can I come inside you. [The

victim] said yes. I slightly penetrated [the

victim] with my penis. [The victim], again she

got very aroused, she started saying my name

again loudly. And while I paused and I said,

are you okay? While I said that, at the same

time, [the victim] said, l’m tight. I’m tight,

don’t stop, don’t stop, come into me slowly. I

took her direction. I started coming into her

slowly with my penis. I penetrated her at least

three or four times, no more than four and

deeper than the first time. I knew what we

were doing with—[the victim] and I were doing

was wrong. I smelled blood. Well, I smelled an

odd smell, I noticed the blood. When I noticed

the blood, I took it as it was an opportunity to

stop. And that’s what I did. I stopped. I

thought it was the Lord giving me an

opportunity to stop because I didn’t want to

continue what we were doing. In my heart,

that’s not what I wanted to do even though I

was doing it, what we were doing. So I

stopped. I told [the victim] I think we need to

stop. [The victim] got a little shy. She got a

-8-

J-S78026-14

little embarrassed. She sat up, she noticed the

blood. And she got quiet.13

[Gonzalez] denied ever putting the victim’s legs on

his shoulders, or having his hands around her

ankles. He also denied ever apologizing to the victim

or admitting that he had a ‘weakness.’ He testified

further that she never said ‘no, don’t.’ He said:

The whole time we were in the bedroom, [the

victim] was giving me direction to what to do. I

was following her—after her direction. She

told me to take her pants off. She told me

to...rub my penis against her vagina. [The

victim] was the one that told me not to stop.

She gave me direction, instruction, you know,

to come into her slowly. That’s exactly what I

did.14

Trial Court Pa.R.A.P. 1925(a) Opinion (“Opinion”), pp. 6-12.

The trial court provides an accurate account of K.M.’s and Gonzalez’s

testimony, but there is additional relevant evidence that the trial court does

not mention. After concluding sexual intercourse, K.M. and Gonzalez

returned to the living room to continue watching the movie. Gonzalez

indicated that his cousin was coming over to visit, and K.M. asked him to

take her home. Gonzalez assisted her, and she stood outside while Gonzalez

went to get his car. Although the police station was across the street, K.M.

did not make any telephone calls or attempt to go to the police station to

report the incident. Gonzalez helped K.M. into the car, and they stopped at

____________________________________________

13

N.T., 9/4/13, pp. 151, 157-160, 187.

14

N.T., 9/4/13, pp. 180-183.

-9-

J-S78026-14

a gas station en route to her house. She did not use her cell phone at the

gas station or report the incident to anyone. Upon arriving at her home,

Gonzalez helped her get out of the car.15

After K.M. entered her house, her sister asked her whether something

was wrong. K.M. did not state that Gonzalez had assaulted her. K.M.’s

mother questioned her. K.M. initially denied that anything was wrong but

then stated: “I think he raped me.”16

K.M. was taken to the hospital and eventually was interviewed by the

police. A hospital nurse testified that she interviewed and examined K.M. at

the hospital. The nurse’s notes state: “He laid me back on the bed. And he

went in. I said no.” K.M. also stated that after the sexual encounter, she

returned to the couch and continued to watch the movie. She also indicated

that Gonzalez did not use any physical or verbal coercion during the

encounter, and K.M. did not sustain any bruising or injury. There was blood

on K.M.’s underwear. The nurse began but could not complete a full internal

examination, because K.M. felt uncomfortable. K.M. was discharged from the

hospital without any determination of the cause of her bleeding.17

____________________________________________

15

N.T., 9/3/13, pp. 89-91, 137, 145.

16

N.T., 9/3/13, pp. 92-93, 147-49.

17

N.T., 9/3/13, pp. 18, 21-22, 31, 40, 223, 230, 236, 238-239, 251.

- 10 -

J-S78026-14

Each party presented expert testimony on the cause of K.M.’s

bleeding. The Commonwealth’s expert testified that the blood on her

underwear was not menstrual in nature. Gonzalez’s expert testified that the

blood was menstrual in nature.18

Gonzalez’ first argument on appeal is a challenge to the sufficiency of

the evidence. We first consider the evidence of rape. The Crimes Code

defines rape in pertinent part as follows: “A person commits a felony of the

first degree when the person engages in sexual intercourse with a

complainant. . .by forcible compulsion.” 18 Pa.C.S. § 3121(a)(1). The

Crimes Code defines “forcible compulsion” in relevant part as “compulsion by

use of physical, intellectual, moral, emotional or psychological force, either

express or implied.” 18 Pa.C.S. § 3101. This Court has observed “forcible

compulsion” as the exercise of sheer physical force or violence and has also

come to mean an act of using superior force, physical, moral, psychological

or intellectual to compel a person to do a thing against that person’s volition

and/or will. Commonwealth v. Ables, 590 A.2d 334, 337 (Pa.Super.1991).

A determination of forcible compulsion rests on the totality of the

circumstances, including but not limited to this list of factors:

the respective ages of the victim and the accused,

the respective mental and physical conditions of the

victim and the accused, the atmosphere and physical

____________________________________________

18

N.T., 9/4/2013 pp. 4-48 (Commonwealth’s expert); N.T., 9/5/2013 pp. 4-

63 (Gonzalez’s expert).

- 11 -

J-S78026-14

setting in which the incident was alleged to have

taken place, the extent to which the accused may

have been in a position of authority, domination or

custodial control over the victim, and whether the

victim was under duress.

Commonwealth v. Rhodes, 510 A.2d 1217, 1226 (Pa.1986) (emphasis

added). It is not mandatory to show that the victim resisted the assault in

order to prove forcible compulsion. Id. The victim’s uncorroborated

testimony is sufficient to support a rape conviction. Commonwealth v.

Wall, 953 A.2d 581, 584 (Pa.Super.2009).

The distinction between forcible compulsion and lack of consent is

important to remember. With regard to consent, the Crimes Code states:

“The consent of the victim to conduct charged to constitute an offense or to

the result thereof is a defense if such consent negatives an element of the

offense or precludes the infliction of the harm or evil sought to be prevented

by the law defining the offense.” 18 Pa.C.S. § 311(a). “Forcible

compulsion” means “something more” than mere lack of consent.

Commonwealth v. Smolko, 666 A.2d 672, 676 (Pa.Super.1995). “Where

there is a lack of consent, but no showing of either physical force, a threat of

physical force, or psychological coercion, the ‘forcible compulsion’

requirement. . .is not met.” Id.

The trial court comprehensively analyzed the sufficiency of the

evidence of rape in its opinion denying Gonzalez’s motion for post-trial relief.

The court aptly described this case as “unique”, because “it is not a case of

- 12 -

J-S78026-14

moral, psychological, or intellectual forcible compulsion that has often been

found in circumstances involving a young, vulnerable victim and a

perpetrator who is in a position of authority and trust.” Opinion Denying

Post-Trial Relief (“Post-Trial Opinion”), 11/5/13, p. 13. The court was

careful to note that this case involved “two competent adults who formed a

dating relationship” who had engaged in “some consensual intimacy (i.e.

kissing, hugging)”, and the incident “occurred during a planned date.” Id.,

p. 14. Moreover, “the victim initiated kissing and touching with [Gonzalez]

on the couch in his living room, willingly walked herself to the bedroom upon

[Gonzalez’s] request, and did not protest when he removed her pants and

underwear.” Id. Thus, the court found nothing about the respective ages or

mental conditions of Gonzalez and K.M. that demonstrates forcible

compulsion. Id. Gonzalez did not occupy a position of “authority or

custodial control” over K.M., and she was not under duress. Id.

Despite these factors, the trial court reasoned that other details

showed Gonzalez’s “domination” over K.M. The court observed that K.M.’s

cerebral palsy “was a physical condition that caused her to have stiff legs

with limited movement and walk with crutches.” Id., p. 16. During the

encounter, “she was lying on her back, away from her crutches and her cell

phone,” all of which Gonzalez had placed beyond her reach, and she “was

away from any objects she could use to help lift herself up. . .” Id.

Gonzalez “was initially lying on top of her and then forced her legs apart and

- 13 -

J-S78026-14

cuffed her ankles on his shoulders. He also told [K.M.] to be quiet when she

repeatedly said ‘ow’ during the penetration.” Id. Although K.M. did not call

out for help or try to push Gonzalez away with her arms, “resistance is not

necessary to prove forcible compulsion” – and in any event, resistance would

have accomplished nothing, since Gonzalez was too big to push off her body,

and she was unable to kick due to her cerebral palsy. Id., pp. 16-17.

The trial court also concluded that there was evidence of “physical

force.” By itself, K.M.’s statement, “no don’t”, is not sufficient evidence of

force, because this statement only indicates lack of consent, and “forcible

compulsion is something more than lack of consent.” Id. at 17 (citing

Commonwealth v. Berkowitz, 641 A.2d 1161, 1165 (Pa.1994). Here,

however, there was “something more,” specifically, lack of consent and

physical force:

[Gonzalez] forc[ed] the victim’s legs apart, ben[t]

her knees, mov[ed] her ankles up to his shoulders

and cuff[ed] her ankles while he penetrated her.

The victim was unable to open her legs or bend her

knees by herself. [Gonzalez] repositioned her legs

when he penetrated her with his finger, and then

again placed her legs back on his shoulders when he

penetrated her with his penis a second time. Again,

the victim was unable to move her legs to resist or

prevent [Gonzalez’s] actions.

Id., p. 17. Although this force “was not extreme, it was certainly unique to

the factual circumstances of the case and sufficient to establish forcible

compulsion by [Gonzalez] on this particular victim” beyond a reasonable

doubt. Id., pp. 17-18.

- 14 -

J-S78026-14

We agree with the trial court’s astute analysis by construing the

evidence in the light most favorable to the Commonwealth. K.M.’s

testimony establishes that she told Gonzalez that she did not want

premarital intercourse. Gonzalez pretended to agree with K.M., but one day

later, he maneuvered her into a position in which she was powerless to

resist his advances. He took her to his apartment, where she had never

been before. He placed her cell phone out of reach in a living room tray,

and when they adjourned to his bedroom and lay down on his bed, he placed

her crutches out of reach. Without her phone or crutches, she could not

escape from the bed or contact an outside agency for help. He then

disrobed her and lay on top of her. She uttered “no, don’t,” but instead of

stopping, he forced her legs apart and cuffed them on his shoulders –

movements she was incapable of performing herself due to her cerebral

palsy. He then penetrated her with his penis and told her to be quiet when

she repeatedly called out “ow”. K.M.’s lack of consent (“no, don’t”),

combined with Gonzalez’s use of domination and physical force, provide

sufficient evidence of forcible compulsion to justify his conviction for rape.

Gonzalez’s contention that K.M. initiated sexual intercourse and that he

followed her directions does not undermine the sufficiency of the evidence.

Commonwealth v. Andrulewicz, 911 A.2d 162, 166 (Pa.Super.2006)

(“the court was free to accept [the victim’s] characterization of what

transpired with Appellant, particularly her representation that Appellant

- 15 -

J-S78026-14

‘raped’ her”); Filer, 846 A.2d at 141 (victim’s testimony that defendant

digitally penetrated her was sufficient evidence for jury to find defendant

guilty of aggravated indecent assault despite defendant’s different version of

events).

The evidence is also sufficient to support Gonzalez’s conviction for

aggravated indecent assault. The Crimes Code defines this offense in

pertinent part as follows:

Except as provided in sections 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:

(1) The person does so without the complainant’s

consent; [or]

(2) The person does so by forcible compulsion.

18 Pa.C.S. § 3125(a). Digital penetration is sufficient to support a

conviction for aggravated indecent assault, Commonwealth v. Filer, 846

A.2d 139, 141 (Pa.Super.2004), as is penetration with the defendant’s penis.

Commonwealth v. Castlehun, 889 A.2d 1228, 1233 (Pa.Super.2005)

(evidence was sufficient to support finding that defendant penetrated

victim’s vagina, as required to support aggravated indecent assault

conviction; victim testified that defendant both digitally penetrated her

vagina and inserted his penis into her vagina).

- 16 -

J-S78026-14

Here, Gonzalez penetrated K.M. with his finger and then with his

penis. K.M. testified that she said “no, don’t” and that Gonzalez “raped” her.

This evidence demonstrates that each penetration occurred without K.M.’s

consent. Andrulewicz, Filer, supra. And as explained on pages 11-14,

the evidence also is sufficient to demonstrate forcible compulsion. Thus, the

evidence is sufficient to prove aggravated indecent assault beyond a

reasonable doubt.

The same evidence is sufficient to sustain Gonzalez’s conviction for

sexual assault. The Crimes Code defines this offense in pertinent part as

follows: “A person commits a felony of the second degree when that person

engages in sexual intercourse or deviate sexual intercourse with a

complainant without the complainant’s consent.” 18 Pa.C.S. § 3124.1.

Resistance to the sexual assault is not a requisite for sustaining a conviction

for sexual assault. Andrulewicz, 906 A.2d at 165-66. The evidence

demonstrates that Gonzalez and K.M. engaged in sexual intercourse without

K.M.’s consent.

Gonzalez’s second argument on appeal is that the verdict is contrary to

the weight of the evidence. We disagree.

The law pertaining to weight of the evidence claims is well-settled.

The weight of the evidence is a matter 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. Commonwealth v. Forbes, 867 A.2d 1268,

- 17 -

J-S78026-14

1273–74 (Pa.Super.2005). A new trial is not warranted because of “a mere

conflict in the testimony” and must have a stronger foundation than a

reassessment of the credibility of witnesses. Commonwealth v. Bruce,

916 A.2d 657, 665 (Pa.Super.2007). Rather, the role of the trial judge is to

determine that notwithstanding all the facts, certain facts are so clearly of

greater weight that to ignore them or to give them equal weight with all the

facts is to deny justice. Id.

On appeal, “our purview is extremely limited and is confined to

whether the trial court abused its discretion in finding that the jury verdict

did not shock its conscience. Thus, appellate review of a weight claim

consists of a review of the trial court's exercise of discretion, not a review of

the underlying question of whether the verdict is against the weight of the

evidence.” Commonwealth v. Knox, 50 A.3d 732, 738 (Pa.Super.2012).

An appellate court may not reverse a verdict unless it is so contrary to the

evidence as to shock one's sense of justice. Forbes, 867 A.2d at 1273–74.

The trial court fully and satisfactorily explains why Gonzalez’s weight

of the evidence claim is unsuccessful:

The [c]ourt disagrees with [Gonzalez]’s statement

that totality of the evidence presented at trial

established that any sexual relations that [Gonzalez]

had with the victim were consensual in nature. True,

much of the evidence presented at trial did establish

that the victim and [Gonzalez] engaged in some

consensual kissing and touching prior to the sexual

intercourse, but the testimonies of the victim and

[Gonzalez] clearly conflict regarding whether the

sexual intercourse itself was consensual. The sexual

- 18 -

J-S78026-14

intercourse is the subject of the criminal convictions

at issue, not anything that occurred prior.

Regardless. . .it is entirely irrelevant what the

totality of the evidence does or does not establish,

because the jury is free to believe all, part, or none

of the evidence presented at trial. The victim’s

testimony shows that the sexual intercourse that

occurred in [Gonzalez]’s bedroom on March 8, 2011

was not consensual. For example, after detailing the

events in [Gonzalez]’s bedroom, the victim went on

to testify that [Gonzalez] ‘raped her.’ (N.T. 9/3/2013

p. 93, 97, 183). She agreed with the

Commonwealth’s statement that she never gave

[Gonzalez] permission to have sexual intercourse

with her, and said "no, don’t" when [Gonzalez] lay

on top of her. Id. at 97. Due to the nature of the

verdict, the jury evidently found the victim credible,

and elected not to believe [Gonzalez]’s version of

events. See Commonwealth v. Hunzer, 868 A.2d

498, 507 (Pa.Super.2005). Conflicts between the

testimonies of the victim and [Gonzalez] are for the

jury to resolve, and review of the jury’s credibility

determinations is not for the trial court to undertake.

As referenced above, a new trial should not be

granted because of a mere conflict in the testimony

or because the judge on the same facts would have

arrived at a different conclusion. Widmer, 744 A.2d

at 751-52. The jury weighed the evidence presented,

evaluated the testimony of the witnesses, and made

a determination thereupon. It was entitled to believe

the victim and to find [Gonzalez] incredible.

The Court also disagrees with [Gonzalez]’s argument

that the testimony presented at trial did not

establish forcible compulsion, threat of forcible

compulsion or the absence of consent. We have

already found that the victim’s testimony at trial

established forcible compulsion and the absence of

consent. . .Although [Gonzalez]’s version of events

does not establish either, the jury found the victim

and her testimony credible and discredited that of

[Gonzalez]. The Court will not disturb the jury’s

credibility determinations here.

- 19 -

J-S78026-14

After careful review of the record, the Court cannot

find the verdicts so contrary to the evidence as to

shock one’s sense of justice and make an award of a

new trial imperative. Consequently, the Court does

not find [Gonzalez]’s testimony and version of events

so clearly of greater weight than the victim’s that

failure to give it credence amounts to a denial of

justice. [Gonzalez] is not entitled to a new trial as

the verdicts are not against the weight of the

evidence.

Opinion, pp. 17-19. For the reasons given by the trial court, we conclude

that it properly exercised its discretion in denying Gonzalez’s challenge to

the weight of the evidence.

In his third argument on appeal, Gonzalez contends that the trial court

erred in admitting into evidence an audiotape of K.M.’s statement to the

police on March 13, 2011, several days after the incident and over two years

before trial.19 The trial court held that the audiotape was admissible under

Pa.R.E. 613(c) as a prior consistent statement. Gonzalez contends that the

audiotape did not qualify as a prior consistent statement. Gonzalez argues

that the audiotape prejudiced him, because K.M.’s sobbing voice made the

jury sympathize with her and become inflamed against him.

As the appellant, Gonzalez has the duty to ensure that the record is

complete for purposes of appellate review. Commonwealth v. Griffin, 65

A.3d 932, 936 (Pa.Super.2013). The record in this case does not include the

____________________________________________

19

The court permitted the Commonwealth to play the tape during trial.

N.T., 9/3/2013, p. 96.

- 20 -

J-S78026-14

audiotape or even a transcript of K.M.’s statement, thus thwarting our

review of Gonzalez’s argument. Commonwealth v. Preston, 904 A.2d 1, 6

(Pa.Super.2006) (en banc). Accordingly, we find this argument waived.

Commonwealth v. Powell, 956 A.2d 406, 422-23 (Pa.2008) (defendant

waived appellate review of his claim that trial court erred at trial for capital

murder in admitting a certain autopsy photograph; photograph was not

contained in the record, and the Supreme Court was accordingly unable to

assess defendant’s claim, which was based on his assertions that photograph

was gruesome and had a strong likelihood that it would inflame passions of

jury).

In his fourth argument on appeal, Gonzales asserts that the trial court

abused its discretion in granting the Commonwealth’s motion to preclude

evidence concerning K.M.’s mental health diagnoses. This argument has two

subparts – a claim that the trial court should have permitted evidence

concerning K.M.’s mental health diagnoses, and a claim that the trial court

erred in refusing to compel the Commonwealth to produce mental health

records pertaining to K.M from an alleged mental health facility, Brooklane

Health Services (“BHS”). Neither subpart is persuasive.

The relevant procedural history is as follows. In mid-2012, the

Commonwealth produced K.M.’s medical records from Waynesboro Hospital

(July 1, 2006 through August 31, 2006 and February 1, 2009 through March

1, 2009), Cumberland Valley Women’s Group (February 1, 2008 through

- 21 -

J-S78026-14

March 1, 2009), Antrim Family Medicine (February 1, 2008 through March 1,

2009) and Hershey Medical Center (January 1, 2004 through January 30,

2013) (collectively “the medical facilities”). These records delineated K.M.’s

medical treatment both before and after the assault.

Gonzalez also demanded K.M.’s records from BHS,20 which he alleged

is a mental health facility21 that K.M. checked into “shortly after” the

assault.22 The trial court repeatedly denied Gonzalez’s requests for the BHS

records.23

On July 23, 2013, the Commonwealth moved to preclude evidence of

K.M.’s mental health diagnoses in the medical facilities’ records.24 In

____________________________________________

20

Defendant’s Motion Requesting Order Of Court To Release Criminal

Complainant’s School Records And Medical Records (Doc. # 15) (filed

December 29, 2011); Defendant’s Motion For Reconsideration Of Denial Of

Defendant’s Motion Requesting Order Of Court To Release Criminal

Complainant’s School Records And Medical Records (Doc. # 19) (filed

February 17, 2012); Defendant’s Memorandum In Support Of Defendant’s

Motion For Reconsideration, p. 5 (Doc. # 82) (filed August 26, 2013).

21

The Commonwealth did not dispute below, and does not dispute here, that

BHS is an actual, extant mental health facility. Therefore, we assume for

purposes of this appeal that BHS is an actual, extant mental health facility.

22

Defendant’s Memorandum In Support Of Defendant’s Motion For

Reconsideration, p. 5 (Doc. # 82) (filed August 26, 2013).

23

Order Dated January 31, 2012 (Doc. # 18); Order Dated March 16, 2012

Denying Defendant’s Motion For Reconsideration (Doc. # 23); Order Dated

August 29, 2013 Denying Defendant’s August 26, 2013 Motion For

Reconsideration (Doc. # 83).

24

Commonwealth’s Motion In Limine (Doc. # 71) (filed July 23, 2013).

- 22 -

J-S78026-14

response, Gonzalez obtained an expert report25 which opined: “The

diagnoses [in the medical records] of depression (noted to be worsening)

and anxiety may affect perception and recollection. Diagnoses of depression

and anxiety and the medications used to treat these diagnoses may affect

perception and recollection.”26 [Emphasis added] On August 13, 2013, the

trial court granted the Commonwealth’s motion to exclude evidence of K.M.’s

mental health diagnoses in the medical facilities’ records.27

We first address the trial court’s order precluding evidence of K.M.’s

mental health diagnoses. In general, the admission of evidence

is a matter vested within the sound discretion of the

trial court, and such a decision shall be reversed only

upon a showing that the trial court abused its

discretion. In determining whether evidence should

be admitted, the trial court must weigh the relevant

and probative value of the evidence against the

prejudicial impact of the evidence. Evidence is

relevant if it logically tends to establish a material

fact in the case or tends to support a reasonable

inference regarding a material fact. Although a court

may find that evidence is relevant, the court may

nevertheless conclude that such evidence is

inadmissible on account of its prejudicial impact.

____________________________________________

25

Defendant’s Response To Commonwealth’s Motion In Limine, Exhibit “A”

(Doc. # 72) (filed July 29, 2013) (expert report of Kathleen Brown, Ph.D.,

RN, associate practice professor at the University of Pennsylvania’s School of

Nursing).

26

Defendant’s Response To Commonwealth’s Motion In Limine, Exhibit “A”,

p. 4.

27

Opinion And Order Dated August 12, 2013 (Doc. # 77).

- 23 -

J-S78026-14

Commonwealth v. Weakley, 972 A.2d 1182, 1188 (Pa.Super.2009).

Furthermore, when determining the admissibility of evidence of a witness’

mental instability,

[t]he crucial determination that a trial judge must

make. . .is whether [this evidence] is related to the

subject of the litigation or whether it affects the

testimonial ability of the witness so as to impeach

him. The evidence can be said to affect the credibility

of a witness when it shows that his mental

disorganization in some way impaired his capacity to

observe the event at the time of its occurrence, to

communicate his observations accurately and

truthfully at trial, or to maintain a clear recollection

in the meantime.

Commonwealth v. Mason, 518 A.2d 282, 285 (Pa.Super.1986).

In this case, Gonzalez contends that the report of his expert, Dr.

Brown, created enough questions about K.M.’s ability to perceive and recall

events that the trial court should have denied the Commonwealth’s motion

to preclude evidence of K.M.’s mental instability. The law on the

admissibility of expert testimony is well settled. Pa.R.E. 703 provides:

The facts or data in the particular case upon which

an expert bases an opinion or inference may be

those perceived by or made known to the expert at

or before the hearing. If of a type reasonably relied

upon by experts in the particular field in forming

opinions or inferences upon the subject, the facts or

data need not be admissible in evidence.

Under this rule,

expert testimony is incompetent if it lacks an

adequate basis in fact. While an expert’s opinion

need not be based on absolute certainty, an opinion

based on mere possibilities is not competent

- 24 -

J-S78026-14

evidence. This means that expert testimony cannot

be based solely upon conjecture or surmise. Rather,

an expert’s assumptions must be based upon such

facts as the jury would be warranted in finding from

the evidence.

Gillingham v. Consol Energy, Inc., 51 A.2d 841, 849 (Pa.Super.2012).

While an expert need not use “magic words,” the foundation of her opinion

must still be sturdy. As our Supreme Court has emphasized, the expert

must base the substance of her opinion on a reasonable degree of certainty

instead of mere speculation. Commonwealth v. Spotz, 756 A.2d 1139,

1150 (Pa.2000) (forensic pathologist’s testimony in first-degree murder trial

as to victim’s manner of death was properly based on reasonable degree of

medical certainty, though pathologist did not use those “magic words,”

where pathologist explained that victim had been shot in neck and chest,

that amount of hemorrhage surrounding gunshot wounds indicated she was

shot while she was alive, and that minimal hemorrhage surrounding other

wounds indicated she was run over after she died).

In our view, Dr. Brown grounded her report on “on mere possibilities”

instead of a reasonable degree of certainty. Gillingham, supra, 51 A.3d at

849. She stated only that K.M.’s diagnoses of depression and anxiety in the

medical records “may affect [her] perception and recollection.” She failed to

opine that K.M.’s alleged depression or anxiety impaired her perception or

recall of the critical events at the heart of this case. Because her report was

nothing more than “conjecture or surmise,” Id., the trial court acted within

- 25 -

J-S78026-14

its discretion by excluding evidence of K.M.’s mental health diagnoses in the

records provided by the Commonwealth.28

We turn to Gonzalez’s contention that the trial court erred by denying

his requests to compel the Commonwealth to produce K.M.’s records from

BHS. Gonzalez apparently believes that the BHS records might bolster his

claim that K.M. “[lacked] capacity to observe the event at the time of its

occurrence, to communicate [her] observations accurately and truthfully at

trial, or to maintain a clear recollection in the meantime.” Mason, supra,

518 A.2d at 285. We review the trial court’s discovery rulings for abuse of

discretion. Commonwealth v. Robinson, 834 A.2d 1160, 1166

(Pa.Super.2003).

____________________________________________

28

It bears mention that despite the trial court’s ruling, it permitted counsel

to ask questions about K.M.’s medication use, yet none of the evidence

showed that the medications affected her ability to testify. For example,

defense counsel asked K.M. if she had “taken any medications today that

might affect [her] ability to continue?” N.T. 9/3/2013, p. 147. K.M.

responded in the negative, and defense counsel asked: “Are there any

medications that you needed to take that you didn’t have a chance to take?”

Id. K.M. again responded in the negative. Id. The Commonwealth asked

K.M.’s mother if she was familiar with several different medications that K.M.

took due to her cerebral palsy. Id. at 206. K.M.’s mother responded that

she was, and the Commonwealth asked if she had “noticed any problems

with disorientation, memory loss, or anything like that as a result of that

medication.” Id. K.M.’s mother responded that there were problems which

lasted about a week when the victim first started taking the medications

when she was 25, but at the time of the assault, March 2011, she did not

recall K.M. having any problems with awareness or orientation in time or

place. Id.

- 26 -

J-S78026-14

For two reasons, we conclude that the trial court acted within its

discretion by denying Gonzalez access to the BHS records. First, despite

Gonzalez’s claims that K.M. sought in-patient treatment at BHS “shortly

after” Gonzalez’s assault, we find nothing in the record which establishes

when, if ever, K.M. received treatment at BHS. Absent such indicia, we have

no way to gauge the relevance of the BHS records. Moreover, Dr. Brown,

Gonzalez’s expert, reviewed copious medical records from the

aforementioned medical facilities relating to K.M.’s treatment from mid-2006

through early 2013, both before and after Gonzalez’s assault. The most that

Dr. Brown can say after reading 6½ years of medical records is her wholly

inadequate remark that K.M.’s depression and anxiety “may affect

perception and recall.” Under these circumstances, it seems rather

speculative for Gonzalez to suggest that the BHS records would have

provided anything more helpful to his defense.

Second, assuming that K.M. received treatment at BHS, the BHS

records are privileged and not subject to release without K.M.’s consent.29

The Mental Health Procedures Act (“MHPA”) provides in relevant part:

____________________________________________

29

Although the trial court did not discuss the subject of privilege, we still

have the authority to affirm on this ground. Bradley v. General Acc. Ins.

Co., 778 A.2d 707, 710 n. 2 (Pa.Super.2001) (“we may affirm the decision

of [the trial] court if the result is correct on any ground”).

- 27 -

J-S78026-14

(a) All documents concerning persons in treatment

shall be kept confidential and, without the person’s

written consent, may not be released or their

contents disclosed to anyone except:

(1) those engaged in providing treatment for the

person;

(2) the county administrator, pursuant to section

110;

(3) a court in the course of legal proceedings

authorized by this act; and

(4) pursuant to Federal rules, statutes and

regulations governing disclosure of patient

information where treatment is undertaken in a

Federal agency.

In no event, however, shall privileged

communications, whether written or oral, be

disclosed to anyone without such written consent.

50 P.S. § 7111 (emphasis added). The MHPA must be strictly construed.

Commonwealth v. Moyer, 595 A.2d 1177, 1179 (Pa.Super.1991).

Construed strictly, the MHPA limits judicial use of mental health records to

mental health commitment proceedings unless the patient consents to their

use in other judicial proceedings. 50 P.S. § 7111. Moyer speaks

definitively on this point:

The unambiguous language of section 7111(3) leads

us to conclude that a patient’s inpatient mental

health treatment records may be used by a court

only when the legal proceedings being conducted are

within the framework of the MHPA, that is,

involuntary and voluntary mental health commitment

proceedings. See 50 P.S. § 7103 (MHPA establishes

the rights and procedures for all involuntary

treatment of mentally ill persons, whether inpatient

or outpatient, and for all voluntary inpatient

treatment of mentally ill persons). See also Kakas

- 28 -

J-S78026-14

v. Commonwealth of Pennsylvania, 65

Pa.Cmwlth. 550, 442 A.2d 1243 (1982). We can find

no language within the [MHPA] itself which includes

criminal proceedings within the framework of the act,

nor can we find any caselaw in the Commonwealth

which supports such a proposition.

Id. (emphasis in original). The records at issue in Moyer were mental

health records of a criminal defendant, while the mental health records in

this case pertain to a criminal complainant (K.M.). Nevertheless, Moyer’s

construction of section 7111(3) applies with equal force to this case.

Because this case is not a voluntary or involuntary mental health

commitment proceeding, K.M.’s mental health records are not discoverable

absent K.M.’s consent to their release. Nothing in the record indicates that

K.M. consented to the release of BHS records. Thus, they have no place in

this criminal case.

We do not agree with Gonzalez’s argument that Commonwealth v.

Dudley, 510 A.2d 1235 (Pa.Super.1986), requires disclosure of K.M.’s BHS

records. In Dudley, a complainant received psychiatric treatment at two

hospitals within several months after an alleged rape. The complainant had

hallucinations and suffered a psychotic episode approximately two months

after the incident and approximately six months before trial. According to a

psychiatrist who treated her, the complainant had a “hysterical personality,

which means when she gets overwhelmed or needs more attention, and [sic]

she does have childish attention-seeking behavior. . .then she has fainting

- 29 -

J-S78026-14

spells.” Id., 510 A.2d at 1238. The trial court ruled that defense counsel

could not introduce the testimony of a psychiatrist who treated the

complainant at one of the hospitals. This Court determined that the trial

court abused its discretion by excluding psychiatric testimony regarding the

complainant’s post-incident hospitalization, because “[the complainant’s]

mental disorganization in some way impaired [her] capacity to observe the

event at the time of its occurrence, to communicate [her] observations

accurately and truthfully at trial, or to maintain a clear recollection in the

meantime.” Id.

Dudley is distinguishable from the present case. Unlike Dudley, the

record in this case does not reveal whether the facility in question, BHS, is a

mental health facility, or when K.M. received treatment at BHS. In addition,

the complainant’s diagnosis in Dudley clearly implicated her abilities to

perceive and recall critical events. Here, despite in-depth review of years of

medical records, Gonzalez’s expert did not opine to a reasonable degree of

certainty that K.M.’s depression and anxiety affected her ability to perceive

and recall the events of March 8, 2011. Simply put, nothing in the present

record demonstrates that the alleged BHS records have any relevance.

Moreover, Dudley did not analyze whether the MHPA barred disclosure of

the complainant’s records.

In his fifth issue on appeal, Gonzalez argues that he is entitled to a

new trial because the trial court permitted the Commonwealth to read K.M.’s

- 30 -

J-S78026-14

entire preliminary hearing testimony into the record during the

Commonwealth’s redirect examination of K.M. According to Gonzalez, the

trial court improperly permitted the Commonwealth to present inadmissible

prior consistent testimony. As discussed above, we review the trial court’s

decision to admit or deny evidence for abuse of discretion. We detect no

abuse of discretion in the court’s decision to permit the Commonwealth to

read K.M.’s preliminary hearing testimony into the trial record.

During K.M.’s cross-examination, defense counsel impeached her with

several excerpts from her preliminary hearing testimony. Defense counsel

used a portion of K.M.’s preliminary hearing testimony to discuss whether

she was confused about having any physical contact with the Defendant

prior to March 8, 2011.30 Counsel also attempted to show inconsistencies

regarding how K.M. said the alleged finger penetration occurred.31 In

addition, counsel tried to call K.M.’s attention to inconsistencies in her

testimony about the amount of questions her mother had asked her the

night of the incident.32 On redirect, the Commonwealth said to K.M.:

“[W]hat I'd like to do now is go over your testimony basically, in full,

____________________________________________

30

N.T., 9/3/2013, pp. 109-110.

31

N.T., 9/3/2013, pp. 129-130.

32

N.T., 9/3/2013, pp. 148-149.

- 31 -

J-S78026-14

between page 5 and page 17 so that the jury gets a fair and accurate

depiction of what the entire testimony was instead of little bits and pieces.” 33

Defense counsel objected and asked for an offer of proof and an explanation

as to relevancy.34 The Commonwealth argued the rule of completeness and

stated that defense counsel had “taken bits and pieces of testimony and

cross-examined the witness about it. The jury needs to hear what the entire

testimony was so they can determine what was said.”35 The trial court

allowed the Commonwealth to read K.M.’s entire preliminary hearing

testimony at trial.36 On recross, the court permitted defense counsel to read

relevant portions of the victim’s preliminary hearing testimony.37

The scope of redirect examination is largely within the discretion of the

trial court. Commonwealth v. Dreibelbis, 426 A.2d 1111, 1117

(Pa.1981). When a party raises an issue on cross-examination, it is no

abuse of discretion for the court to permit redirect on that issue to dispel

any unfair inferences. Id., 426 A.2d at 1117. The trial court reasoned that

____________________________________________

33

N.T., 9/3/2013, p. 169.

34

N.T., 9/3/2013, p. 170.

35

N.T., 9/3/2013, p. 170.

36

N.T., 9/3/2013, pp. 170-182.

37

N.T., 9/3/2013, pp. 184-202.

- 32 -

J-S78026-14

its decision to permit the Commonwealth to read K.M.’s preliminary hearing

testimony into the record on redirect does not warrant a new trial:

We permitted the Commonwealth to redirect the

victim with her preliminary hearing testimony to

dispel any unfair inferences that reading small

portions of the testimony out of context raised. We

did not abuse our discretion in allowing the

Commonwealth to do so. Unfortunately, while

reading the Preliminary Hearing testimony onto the

record, the Commonwealth went far beyond the

issues that were raised by defense counsel on cross-

examination. Consequently, the Court permitted

defense counsel to read other relevant portions of

the victim’s preliminary hearing testimony on recross

to give both parties the same opportunity.

Admittedly, the Commonwealth’s redirect went

beyond what the Court had intended, yet defense

counsel was given an equal opportunity to do the

same, and we did not abuse our discretion in initially

allowing the Commonwealth the opportunity to dispel

any unfair inferences.

Opinion, pp. 48-49. We agree with the trial court’s reasoning that it acted

within its discretion in its initial decision to permit the Commonwealth to

read K.M.’s preliminary hearing testimony into the trial record.

Even if the trial court erred in permitting the Commonwealth to read

too much of K.M.’s preliminary hearing testimony into the record, any error

was harmless. “The harmless error doctrine, as adopted in Pennsylvania,

reflects the reality that the accused is entitled to a fair trial, not a perfect

trial.” Commonwealth v. Hairston, 84 A.3d 657, 671 (Pa.2014).

Harmless error exists if the record demonstrates, inter alia, that the error

did not prejudice the defendant or the prejudice was de minimis. Id.

- 33 -

J-S78026-14

Gonzalez’s brief does not identify specific examples of prejudice that he

suffered from the reading of K.M.’s preliminary hearing testimony. He

simply proclaims, without specific citations, that the trial court “allowed the

Commonwealth to present inadmissible prior consistent testimony.” This

bald assertion does not establish that Gonzalez suffered prejudice.

In his final argument on appeal, Gonzalez insists that his sentence is

unreasonable and excessive. He further asserts that while the sentences

imposed did not exceed the statutory maximum and were within the

standard range of the sentencing guidelines, they are still excessive.

This is a challenge to the discretionary aspects of Gonzalez’s sentence.

Our standard of review is as follows:

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. In this context, an abuse of discretion is

not shown merely by an error in judgment. 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.

Commonwealth v. Hoch, 936 A.2d 515, 517–18 (Pa.Super.2007).

The right to appellate review of the discretionary aspects of a sentence

is not absolute and must be considered a petition for permission to appeal.

Hoch, 936 A.2d at 518. An appellant must satisfy a four-part test to invoke

this Court’s jurisdiction when challenging the discretionary aspects of a

sentence. We must consider:

- 34 -

J-S78026-14

(1) whether appellant has filed a timely notice of

appeal; (2) whether the issue was properly

preserved at sentencing or in a motion to reconsider

and modify sentence; (3) whether appellant’s brief

has a fatal defect; and (4) whether there is a

substantial question that the sentence appealed from

is not appropriate under the Sentencing Code.

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

Here, Gonzalez timely filed his notice of appeal within thirty days after

the trial court denied his post-sentence motions. Pa.R.Crim.P. 720(A)(2).

He preserved the challenge to his sentence in his post-sentence motions and

included a Pa.R.A.P. 2119(f) statement in his brief. Further, he raises a

substantial question, i.e., a plausible argument that the sentencing court

either acted inconsistently with a specific provision of the code, or acted

“contrary to the fundamental norms which underlie the sentencing process.”

Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005). The

substantial question in Gonzalez’s brief is an “excessive sentence claim[] in

conjunction with an assertion that the court did not consider mitigating

factors.” Commonwealth v. Dodge, 77 A.3d 1263, 1272 (Pa.Super.2013)

(en banc).38

____________________________________________

38

In a thorough analysis, Dodge demonstrates that this Court has reached

inconsistent decisions as to whether the claim that the trial court failed to

various mitigating factors when fashioning the defendant’s sentence

constitutes a “substantial question”. Id., 77 A.3d at 1272 n. 8. In the same

discussion, Dodge held that a substantial question exists when the

defendant asserts both a claim of excessiveness and the trial court’s failure

to take mitigating circumstances into account. Id. at 1272-73.

- 35 -

J-S78026-14

We determine, however, that Gonzalez’s excessiveness claim is devoid

of merit. We find persuasive the trial court’s thorough analysis of this

question:

[Gonzalez] argues that the Court failed to properly

weigh[] certain mitigating circumstances, including

his law abiding past, his education, his employment

history, his community and familial support, and the

fact that this was his first conviction. The Court

disagrees as this argument is contradicted by the

record. First, a pre-sentence investigation report

was prepared by the Probation Department, and our

Supreme Court has stated that, ‘[w]here pre-

sentence reports exist, we shall continue to presume

that the sentencing judge was aware of relevant

information regarding [Gonzalez]’s character and

weighed those considerations along with mitigating

statutory factors.’ Commonwealth v. Devers, 546

A.2d 12, 18 (Pa. 1988). Not only did the Court

thoroughly review [Gonzalez]’s pre-sentence

investigation report, but also considered [Gonzalez]’s

twenty-four letters of support, heard and considered

the individuals who came forth to support [Gonzalez]

at sentencing, and heard what his attorney stated on

his behalf. See N.T. 12/18/2013 p. 41.

Acknowledging this information, the Court stated,

‘[t]he witnesses that have testified in your support

and the letters provided for those who are absent

today all attest to your good moral character, your

commitment to the community in general, and to

your church.’ Id. The Court stated further:

Notwithstanding the uncontested good deeds

that are attested to in these documents

relative to your community, the issue alone is

not whether you are viewed as an upstanding

contributing member of society. The focus

today must be on what you did do to this

victim on March 8th of 2011 and how should

you be held accountable for your behavior on

that day.

- 36 -

J-S78026-14

Id. at 41-42. Despite [Gonzalez]’s contentions

otherwise, the Court did in fact consider and weigh

mitigating factors, yet found them of lesser value

when considering the gravity of [Gonzalez]’s crimes

against the victim. Additionally, at the time of

sentencing, [Gonzalez] still refused to ‘acknowledge

wrongdoing or the pain of the victim.’ Id. at 42.

Such lack of remorse and accountability weighed

heavily in the Court’s sentencing decisions and

weighed against the mitigating factors [Gonzalez]

claims the Court failed to consider. The Court

reasoned that [Gonzalez]’s ‘choice to not express

remorse for the victim’s consequences of that day

limits the value of the character witnesses letters

and testimony provided today such that I can

consider them in shaping the sentence. But they

cannot be viewed as an excuse for your behavior.’

Id.

Finally, [Gonzalez] asserts that the Court unduly

emphasized the nature of the crimes and their

impact on the victim, and the physical limitations of

the victim in sentencing [Gonzalez]. The Court

disagrees because ‘[e]qual attention’ was given to

the victim and [Gonzalez]. Id. at 43. Also, the Court

did not consider or discuss the victim’s physical

limitations at sentencing. Furthermore, courts are

required to consider the nature of the offenses and

their impact on the victim. A court must ‘follow the

general principle that the sentence imposed should

call for confinement that is consistent with the

protection of the public, the gravity of the offense as

it relates to the impact on the life of the victim and

on the community, and the rehabilitative needs of

[Gonzalez].’ [Commonwealth v.] Mouzon, 812

A.2d [617,] 620 [(Pa.2002)].

Again, in imposing concurrent sentences of four to

fifteen years for the rape conviction and two to ten

years for the aggravated indecent assault conviction,

the Court imposed sentences at the lowest end of

the standard ranges. See N.T. 12/18/2013 p. 44.

He will be serving his two sentences at the same

time for an aggregate sentence of four to fifteen

- 37 -

J-S78026-14

years. At sentencing, the Commonwealth requested

he be sentenced to eight to seventeen years, at the

top of the standard range. Id. at 2, 44. Additionally,

the Court properly took ‘into consideration

[Gonzalez]’s history and characteristics,

but...also…the events of the day that led to

[Gonzalez]’s conviction for rape and aggravated

indecent assault.’ Id.

Opinion, pp. 53-55.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/21/2015

- 38 -