Com. v. Rosado, F.

J-S19020-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

FRANKIE ROSADO :

:

Appellant : No. 3160 EDA 2017

Appeal from the Judgment of Sentence August 22, 2012

In the Court of Common Pleas of Monroe County Criminal Division at

No(s): CP-45-CR-0000018-2012

BEFORE: SHOGAN, J., NICHOLS, J., and PLATT, J.*

MEMORANDUM BY NICHOLS, J.: FILED MAY 22, 2018

Appellant Frankie Rosado appeals from the judgment of sentence

entered August 22, 2012, following his convictions for indecent sexual assault,

unlawful contact with a minor, and corruption of a minor.1 Appellant asserts

that his sentence is excessive and that his conviction is against the weight of

the evidence. We affirm.

The trial court summarized the relevant facts of this matter as follows:

Appellant was convicted of having improper sexual contact with a

seventeen[-]year-old girl [(Victim)] on two separate occasions. At

the time the unlawful contact occurred, Appellant was engaged in

a romantic relationship with the [Victim’s] mother and was living

with [Victim] and her mother. On the first occasion, Appellant got

into bed with [Victim] and began rubbing her sides. [Victim] woke

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 3126(a)(1), 6318(a)(1), and 6301(a)(1)(i), respectively.

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up and told Appellant to stop and to never touch her again. On

the second occasion, [Victim] had fallen asleep on the living room

couch [after Appellant told her to turn off the lantern she was

using since there was no electricity in the house. Victim] was

awakened by Appellant rubbing her breasts and buttocks. She

told Appellant to stop touching her. [Victim’s] mother came from

the bedroom she shared with Appellant and found him on the

couch with her daughter.

Trial Ct. Op., 11/20/12, at 1-2.

A jury convicted Appellant on May 9, 2012, of the aforementioned

charges. On August 22, 2012, Appellant was sentenced to twenty-one to

seventy-two months of incarceration for unlawful contact with a minor and

twelve to twenty-four months of incarceration for indecent assault. Appellant

was sentenced to serve these sentences consecutively, resulting in an

aggregate sentence of thirty-three to ninety-six months of incarceration.2

Appellant filed a direct appeal, in which this Court affirmed his judgment

of sentence on July 23, 2013. See Commonwealth v. Rosado, 2754 EDA

2012 (Pa. Super. filed July 23, 2013) (unpublished mem.). Thereafter,

Appellant sought post-conviction relief under the Post Conviction Relief Act

(PCRA),3 seeking leave to file a nunc pro tunc direct appeal based upon the

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2 Appellant was found not to be a sexually violent predator (SVP). Although

not an SVP, Appellant’s plea subjected him to sexual offender registration

requirements. The trial court at sentencing apprised Appellant that he was

subject to a ten-year sexual offender’s registration period under 42 Pa.C.S. §

9795.1, which was then in effect, but that his registration requirements could

change when 42 Pa.C.S. §§ 9799.14-9799.15 became effective on December

20, 2012. See N.T. Sentencing, 8/22/12, at 21. Appellant does not challenge

the registration requirement.

3 42 Pa.C.S. §§ 9541-9546.

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ineffectiveness of appellate counsel. The PCRA court denied Appellant’s

petition, and this Court affirmed on April 17, 2015. See Commonwealth v.

Rosado, 2474 EDA 2014 (Pa. Super. filed Apr. 17, 2015) (unpublished mem.).

The Pennsylvania Supreme Court granted allowance of appeal and found

that appellate counsel’s errors precluded litigation of Appellant’s direct appeal.

Commonwealth v. Rosado, 150 A.3d 425, 435 (Pa. 2016). On this basis,

the Supreme Court remanded the matter to this Court. Id. In turn, this Court

remanded the matter to the trial court to permit Appellant to file post-sentence

motions nunc pro tunc. See Commonwealth v. Rosado, 2474 EDA 2014

(Pa. Super. filed Jan. 19, 2017) (unpublished mem.).

Subsequently, Appellant filed nunc pro tunc post-sentence motions

asserting that his sentence was excessive and that the verdict was against the

weight of the evidence. Following a hearing and the filing of related briefs,

the post-sentence motions were denied by an order dated September 1, 2017.

Appellant timely filed a notice of appeal. The trial court ordered

Appellant to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b) within twenty-one days of the date of its order

of September 28, 2017. Accordingly, Appellant had until October 19, 2017,

to file a timely statement. However, Appellant’s statement was not filed until

October 20, 2017. Thus, Appellant’s rule 1925(b) statement was untimely.

Pursuant to Commonwealth v. Burton, 973 A.2d 428 (Pa. Super.

2009), the late filing of a rule 1925(b) statement is per se ineffectiveness of

counsel. Id. at 433; see also Pa.R.A.P. 1925(c)(3). Nevertheless, a remand

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is not necessary here since “the trial court has filed an opinion addressing the

issue[s] presented in [Appellant’s] 1925(b) concise statement.” Burton, 973

A.2d at 433. Thus, we consider the merits of the issues presented on appeal.

Appellant raises the following questions for our review:

1. Did the trial court err and abuse its discretion by giving

[Appellant] a sentence that was excessive and not in line with

the Pennsylvania sentencing guidelines?

2. Did the trial court err and abuse its discretion by not finding

that the jury verdict was contrary to the weight of the evidence

such that [Appellant] is entitled to a new trial?

Appellant’s Brief at 8 (full capitalization omitted).

In his first issue, Appellant asserts that the trial court ordered him to

serve an excessive sentence even though his overall sentence is within the

sentencing guideline range. Appellant asserts excessiveness on the basis that

the sentencing court ordered him to serve his sentences for each conviction

consecutively. Id. at 16. Although not specifically noted in his question

presented, Appellant also asserts in the argument section of his appellate brief

that the sentencing court failed to place its reasons for his sentence on the

record. See id.

Appellant’s issue implicates the discretionary aspects of his sentence. It

is well-settled that a challenge to the discretionary aspects of sentencing is

not reviewable as a matter of right. Commonwealth v. Coss, 695 A.2d 831,

834 (Pa. Super. 1997). Before reaching the merits of a discretionary aspects

of sentencing issue, this Court must determine whether the appellant: (1)

preserved the issue either by raising it at the time of sentencing or in a post-

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sentence motion; (2) filed a timely notice of appeal; (3) set forth a concise

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

Pa.R.A.P. 2119(f); and (4) raises a substantial question for our review.

Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011).

Here, Appellant filed a timely notice of appeal and preserved the issue

in a post-sentence motion. Although Appellant’s brief does not contain a Rule

2119(f) statement, the Commonwealth did not object. See Commonwealth

v. Anderson, 830 A.2d 1013, 1017 (Pa. Super. 2003) (finding that when an

appellant fails to include a Rule 2119(f) statement in an appellate brief, and

the Commonwealth has not objected, this Court can overlook the omission

and review the issue if a substantial question is evident from appellant’s brief).

Therefore, we proceed to determine whether Appellant has raised a

substantial question.

“The determination of whether a substantial question exists must be

determined on a case-by-case basis.” Commonwealth v. Hartman, 908

A.2d 316, 320 (Pa. Super. 2006) (citation omitted). This Court has explained

that: “[a] substantial question exists where an 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.” Id. (citation

omitted).

Appellant argues that his overall sentence is excessive because he was

ordered to serve the sentences consecutively despite the fact that the two

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instances of criminal behavior involved the same victim. Appellant’s Brief at

16. Ordinarily, this would not qualify as a substantial question. See

Commonwealth v. Marts, 889 A.2d 608, 612 (Pa. Super. 2005) (finding that

complaint of the imposition of consecutive rather than concurrent sentences

does not raise a substantial question); see also Commonwealth v. Perry,

883 A.2d 599, 603 (Pa. Super. 2005) (“In imposing sentence, the trial judge

may determine whether, given the facts of a particular case, a sentence should

run consecutive to or concurrent with another sentence being imposed.”

(citation omitted)).

Here, however, since Appellant’s excessiveness argument is coupled

with the assertion that the sentencing court failed to place its reasons for his

sentence on the record, Appellant has raised a substantial question. See

Coss, 695 A.2d at 834 (holding that review of appellant’s claim was

necessary, “[a]lthough a claim that the trial court failed to provide reasons for

its sentence technically involves the discretionary aspects of

sentencing, [since] the trial court has no discretion in determining whether or

not to place such reasons on the record.” Instead, the Sentencing Code

dictates that “[i]n every case in which the court imposes a sentence for a

felony or misdemeanor, the court shall make as a part of the record, and

disclose in open court at the time of sentencing, a statement of the reason or

reasons for the sentence imposed.” (citations and quotation marks omitted)).

Therefore, we conclude that Appellant’s claim constitutes a substantial

question for our review.

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“Sentencing is a matter vested within the discretion of the trial court

and will not be disturbed absent a manifest abuse of discretion.”

Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super. 2010) (citation

omitted). “An abuse of discretion requires the trial court to have acted with

manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such

lack of support so as to be clearly erroneous.” Id. (citing Commonwealth

v. Walls, 926 A.2d 957 (Pa. 2007)).

“When imposing sentence, a court is required to consider the particular

circumstances of the offense and the character of the defendant.”

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002) (citation

omitted). “In particular, the court should refer to the defendant’s prior

criminal record, his age, personal characteristics and his potential for

rehabilitation.” Id. Additionally, “[a] sentencing court need not undertake a

lengthy discourse for its reasons for imposing a sentence or specifically

reference the statute in question, but the record as a whole must reflect the

sentencing court’s consideration of the facts of the crime and character of the

offender.” Crump, 995 A.2d at 1283 (citation omitted).

This Court may not reweigh the factors considered by the trial court

when imposing sentence. Commonwealth v. Macias, 968 A.2d 773, 778

(Pa. Super. 2009) (citation omitted). Where the trial court is informed by a

pre-sentence investigation (PSI), we presume “that the court is aware of all

appropriate sentencing factors and considerations, and that where the court

has been so informed, its discretion should not be disturbed.”

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Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009)

(citation omitted).

Here, Appellant’s consecutive sentences are within the standard range

of the sentencing guidelines, albeit at the upper end of the range. Therefore,

we may only reverse the trial court if we find that the circumstances of the

case rendered the application of the guidelines “clearly unreasonable.” 42

Pa.C.S. § 9781(c). Our review of the reasonableness is based upon the factors

contained in 42 Pa.C.S. § 9781(d), and the trial court’s consideration of the

general sentencing standards contained in 42 Pa.C.S. § 9721(b).4 See

Commonwealth v. Baker, 72 A.3d 652, 663 (Pa. Super. 2013).

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4 Section 9721(b) states 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 the defendant.” 42 Pa.C.S. §

9721(b).

Section 9781(d) provides:

In reviewing the record, the appellate court shall have regard for:

(1) The nature and circumstances of the offense and the history

and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the

defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

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Appellant’s claim that the trial court failed to include its reasons on the

record for imposing the particular sentence it chose is inaccurate. At

sentencing, the trial court stated:

In imposing the sentence that you are about to hear I have

considered the content of the pre-sentence investigation report

that you’ve heard everyone talk about. I have also considered the

content of the sexual offender board assessment and evaluation

that was performed. I will note for the record that that evaluation

found or determined that [Appellant], at least in the evaluator’s

determination, did not meet the criteria to be determined to be a

sexually violent predator. However, there was some very

enlightening information and analyses in that report including, but

not limited to, the fact that what you did was predatory in nature,

and very significantly, that you had not stopped that predatory

conduct even when the young [V]ictim had repeatedly asked you

to stop.

I also have considered the facts of this case that are clear from

the record and file of this court and those that were presented

during the trial over which I presided.

Finally, I have considered the applicable sentencing laws, rules

and regulations of both the United States and of Pennsylvania.

So, here’s what I think. This was a very difficult and very

significant ordeal for [Victim] and her mother. Whether or not

you believe that they testified truthfully or not, there was a jury

of your peers who did and found obviously that they were credible

because you were convicted.

I heard the testimony and I thought they were credible as well.

What you did I think was predatory in every sense of that term,

both in terms of our sex offense laws and in the common usage

of that term.

The rest is already laid out in the pre-sentence investigation report

and [the Commonwealth] has indicated you’ve been arrested 13

times, you have 10 convictions. Significantly, many of the tools

that we have in the juvenile and criminal justice systems and our

penal systems have been tried -- everything from probation and

treating some things as a summary to some periods of

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incarceration. There’s absolutely nothing that has stopped your

criminal behavior. This is not something that you can simply say

I have a mental health diagnosis and that explains everything.

And certainly, had that been a problem for you somewhere in the

last 2 1/2 to 3 years since you’ve been off your meds, you would

have asked someone to help you get back on them.

So while I acknowledge the mental health issues, I do not believe

they excuse the behavior in this case. They are certainly not a

defense to the behavior in this case and I think what you do is

something that’s very heinous and that has adversely affected a

young lady obviously in very bad ways.

I understand everything that’s in this report. I do agree that the

recommendation [of two to five years’ incarceration] is not

sufficient for this case, so I am going to impose under the first

count a sentence of 21 to 72 months, and in the second a sentence

of 12 to 24 for a total of 33 to 96 months.

N.T. Sentencing, 8/22/12, at 13-15.

Our review of the record in light of section 9781(d) reveals that the trial

court gave due consideration to the relevant sentencing factors, including

Appellant’s mental health history, as well as the sentencing guidelines and the

contents of the PSI. Moreover, we discern no basis to conclude that the court’s

decision to sentence Appellant to serve his sentences consecutively was

“clearly unreasonable.” See 42 Pa.C.S. § 9781(c); Baker, 72 A.3d at 663;

Perry, 883 A.2d at 603.

Appellant next argues that “the findings of guilt are in direct

contravention to the weight and sufficiency of the evidence in that the

evidence did not establish beyond a reasonable doubt that [Appellant]

engaged in conduct that violated the three enumerated offenses with which

he was [convicted].” Appellant’s Brief at 17. We are constrained to find

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Appellant’s challenges to the sufficiency and the weight of the evidence

waived.

Appellant’s Rule 1925(b) statement asserted, in relevant part, that

“[t]he trial court erred and abused its discretion by not finding that the jury

verdict was contrary to the weight of the evidence such that [Appellant] is

entitled to a new trial.” Concise Statement of Matters Complained of on

Appeal, 10/20/17. Thus, although Appellant presented a challenge to the

weight of the evidence in his Rule 1925(b) statement, he did not contest the

Commonwealth’s failure to prove any specific element of the offenses of which

he was convicted or otherwise suggest a challenge to the sufficiency of the

evidence.

However, the argument developed in Appellant’s brief presents only a

challenge to the sufficiency of the evidence, not the weight of the evidence.

“The distinction between these two challenges is critical.” Commonwealth

v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

A claim challenging the sufficiency of the evidence is a question of

law. Evidence will be deemed sufficient to support the verdict

when it establishes each material element of the crime charged

and the commission thereof by the accused, beyond a reasonable

doubt. Where the evidence offered to support the verdict is in

contradiction to the physical facts, in contravention to human

experience and the laws of nature, then the evidence is insufficient

as a matter of law. When reviewing a sufficiency claim the court

is required to view the evidence in the light most favorable to the

verdict winner giving the prosecution the benefit of all reasonable

inferences to be drawn from the evidence.

A motion for new trial on the grounds that the verdict is contrary

to the weight of the evidence, concedes that there is sufficient

evidence to sustain the verdict. Thus, the trial court is under no

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obligation to view the evidence in the light most favorable to the

verdict winner. An allegation that the verdict is against the weight

of the evidence is addressed to the discretion of the trial court. 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. A trial judge must do more than

reassess the credibility of the witnesses and allege that he would

not have assented to the verdict if he were a juror. Trial judges,

in reviewing a claim that the verdict is against the weight of the

evidence do not sit as the thirteenth juror. 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. at 751-52 (citations, footnote, and quotation marks omitted).

In his brief, Appellant cites the elements required to prove unlawful

contact with a minor5 and then argues that “the Commonwealth failed to prove

beyond a reasonable doubt that [Appellant] unlawfully communicated with

[Victim] for the purpose of engaging in any prohibited sexual acts with a

minor.” Appellant’s Brief at 19. As noted in Widmer, evidence is deemed

sufficient where each element of a crime is established as being committed by

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5 A person commits the offense of unlawful contact with a minor

if he is intentionally in contact with a minor . . . for the purpose of

engaging in activity prohibited under . . . Chapter 31 (relating to

sexual offenses). 18 Pa.C.S.A. § 6318(a)(1). This Court has

previously elaborated on the crime of unlawful contact, explaining,

[unlawful contact with a minor] is best understood as unlawful

communication with a minor.

Commonwealth v. Leatherby, 116 A.3d 73, 79 (Pa. Super. 2015) (citations

and quotation marks omitted).

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a defendant beyond a reasonable doubt. Widmer, 744 A.2d at 751.

Accordingly, this challenge goes to the sufficiency, rather than the weight, of

the evidence. See id.

Similarly, as to Appellant’s conviction for indecent assault, he provides

the elements of the crime6 and argues that “[Appellant] must bring about this

contact for the purpose of arousing or gratifying [his or her] own or the

victim’s sexual desire[, and t]his was not proven beyond a reasonable doubt.”

Appellant’s Brief at 27. Accordingly, this challenge also goes to the sufficiency

of the evidence. See Widmer, 744 A.2d at 751.

Because a challenge to the sufficiency of the evidence was not preserved

in Appellant’s concise statement filed pursuant to Rule 1925(b), we are

constrained to find it waived. See Commonwealth v. Barnhart, 933 A.2d

1061, 1066 n.10 (Pa. Super. 2007) (indicating that an appellant’s failure to

include an issue in a Pa.R.A.P. 1925(b) statement results in waiver of the issue

(citation omitted)). Moreover, because Appellant has not framed an

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6 As to indecent assault, a person commits an offense

if the person has indecent contact with the complainant, causes

the complainant to have indecent contact with the person or

intentionally causes the complainant to come into contact with

seminal fluid, urine or feces for the purpose of arousing sexual

desire in the person or the complainant and . . . the person does

so without the complainant’s consent.

18 Pa.C.S. § 3126(a)(1).

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appropriate argument regarding the trial court’s discretion when denying his

post-sentence motion for a new trial, we may not consider Appellant’s

arguments as a challenge to the weight of the evidence. See

Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010) (“This Court

will not act as counsel and will not develop arguments on behalf of an

appellant.”).

Judgment of sentence affirmed.

Judge Shogan joins in this memorandum.

Judge Platt concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/22/18

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