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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                    v.                     :
                                           :
JEREMY ELI BACA ,                          :
                                           :
                    Apellant               :
                                           :     No. 410 MDA 2016

           Appeal from the Judgment of Sentence December 21, 2015
                 In the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0000423-2015


BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                         FILED DECEMBER 27, 2016

        Appellant, Jeremy Eli Baca, appeals from the Judgment of Sentence

entered December 21, 2015, in the Court of Common Pleas of Berks County.

After careful review, we conclude that (i) Appellant’s conviction for Indecent

Assault was properly graded as a third-degree felony (“F-3 Indecent

Assault”) where he pressed his penis against the victim’s mouth and thighs;

(ii) the jury’s verdict was not against the weight of the evidence; and (iii)

the trial court did not abuse its discretion when it sentenced Appellant to

consecutive sentences in the aggravated range. Accordingly, we affirm.




*
    Retired Senior Judge assigned to the Superior Court.
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      We summarize the relevant factual and procedural history as follows.

In 2010, Appellant, along with his wife and two children, moved into the

basement of his sister-in-law’s Berks County home. Appellant’s sister-in-law

lived on the first and second floor along with her then-husband and their

children, including the victim in this case, A.M.

      The basement consisted, in part, of a bedroom and a living area with a

couch, a mattress, and a TV. Appellant would sleep in the living area, and

his wife would sleep in the bedroom. Appellant’s children usually slept in the

living area with Appellant. A.M. was close with her cousin, Appellant’s son,

and would often go to the basement to play with her cousin. At times, she

would also sleep downstairs with her cousin in the living area.

      When A.M. was approximately eight years old, she spent the night in

the basement with her cousin and his family. Her cousin was an early riser,

and when she awoke, he was already upstairs in the main part of the house.

Appellant, however, was still in the living area with A.M., and he called her

down to the mattress where he was lying. Appellant then wrapped his arms

around A.M., took his penis out of his shorts, and began pushing A.M.’s head

down towards his genitals.      Appellant attempted to force his penis into

A.M.’s mouth, pushing her mouth and lips against his penis in the process.

Appellant also rubbed his penis and fingers on A.M.’s thighs and tried to

force his penis down A.M.’s shorts.




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      Appellant repeated this behavior on two to four subsequent occasions.

Each time, he would rub his penis and fingers on A.M.’s thighs.           He also

attempted to force A.M. to touch his penis by prying her fist open.

      A.M. did not immediately report Appellant’s abuse.          At age eleven,

A.M. told her sister about the assaults, who then told her stepfather. A.M.’s

stepfather notified A.M.’s mother, who reported the assaults to police.

      Appellant was arrested and charged with one count each of Criminal

Attempt to Commit Rape; Criminal Attempt to Commit Rape of a Child;

Criminal   Attempt   to   Commit   Involuntary    Deviate    Sexual    Intercourse

(“IDSI”); Criminal Attempt to Commit IDSI with a Child; F-3 Indecent

Assault; Indecent Assault, graded as a first-degree misdemeanor; Indecent

Exposure; and Corruption of Minors.

      Appellant elected to proceed by way of a jury trial, which commenced

on September 2, 2015. The Commonwealth withdrew the counts relating to

Criminal Attempt to Commit Rape and IDSI, as well as Indecent Assault,

graded as a first-degree misdemeanor.          Following trial, the jury found

Appellant guilty of F-3 Indecent Assault; Indecent Exposure; and Corruption

of Minors.1 The jury made a specific finding that the Indecent Assault “was

committed    by   touching   the   victim’s   sexual   or   intimate   parts   with

[Appellant’s] sexual or intimate parts[.]”     Verdict Slip, filed 9/3/15.     See


1
  18 Pa.C.S. § 3126(a)(7); 18 Pa.C.S. § 3127(a); and 18 Pa.C.S. §
6301(a)(1)(ii), respectively.



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also 18 Pa.C.S. § 3126(b)(3)(iii).     The jury acquitted Appellant on the

remaining charges.

     On December 21, 2015, the trial court sentenced Appellant as follows:

1½ to 7 years of incarceration for F-3 Indecent Assault, 1 to 5 years of

incarceration for Indecent Exposure, and 1 to 3 years of incarceration for

Corruption of Minors. The trial court set all sentences to run consecutively,

for an aggregate sentence of 3½ to 15 years of incarceration.

     Appellant filed post-sentence motions, which were granted, in part, to

permit him supervised contact with his own minor children, but otherwise

were denied.

     Appellant timely appealed.     Both Appellant and the trial court have

complied with Pa.R.A.P. 1925.

     On appeal, Appellant raises the following three issues.

     1. Whether the evidence presented at trial was insufficient to
     support a guilty verdict of F-3 Indecent Assault where the
     evidence failed to establish, beyond a reasonable doubt, that the
     Indecent Assault was committed by touching the victim’s sexual
     or intimate parts with the sexual or intimate parts of [Appellant].

     2. Whether the guilty verdicts against [Appellant] were contrary
     to the weight of the evidence presented at trial in that the
     testimony against [Appellant] was not credible.

     3. Whether the trial court abused its discretion by sentencing
     [Appellant] to an aggregate term of three and a half (3½) to
     fifteen (15) years incarceration, in the aggravated range, which
     was excessive when considering the protection of the public, the
     gravity of the offense as it relates to the impact on the life of the
     victim and the community, and the rehabilitative needs of
     [Appellant].




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Appellant’s Brief at 7.

                          Sufficiency of the Evidence

      Appellant first avers that the evidence was insufficient to support his

conviction for F-3 Indecent Assault because “the lips of the victim’s closed

mouth are not sexual parts” within the meaning of the grading portion of the

statute defining Indecent Assault. Appellant’s Brief at 15.

      Evidentiary sufficiency is a question of law; thus, our standard of

review is de novo and our scope of review is plenary. Commonwealth v.

Diamond, 83 A.3d 119, 126 (Pa. 2013).

      In determining whether the evidence was sufficient to support a

verdict, we view the evidence and all reasonable inferences to be drawn

therefrom   in   the   light   most   favorable   to   the   verdict   winner,   the

Commonwealth herein. Commonwealth v. Watley, 81 A.3d 108, 113 (Pa.

Super. 2013) (en banc). Furthermore,

      Evidence will be deemed sufficient to support the verdict when it
      established each element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty, and may sustain its burden by means of
      wholly circumstantial evidence. Significantly, we may not
      substitute our judgment for that of the factfinder; if the record
      contains support for the convictions they may not be disturbed.

Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005)

(citations and internal quotations omitted).

      Indecent Assault is defined, in relevant part, as follows:




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      (a) Offense defined.--A person is guilty of indecent assault 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:

                                     ...

            (7) the complainant is less than 13 years of age;

18 Pa.C.S. § 3126(a)(7). In addition, indecent contact is defined as “[a]ny

touching of the sexual or other intimate parts of the person for the purpose

of arousing or gratifying sexual desire, in any person.” 18 Pa.C.S. § 3101.

      Ordinarily, Indecent Assault committed on a complainant less than 13

years of age is graded as a misdemeanor of the first degree. However, it is

graded as a felony of the third degree where, inter alia, “[t]he indecent

assault was committed by touching the complainant's sexual or intimate

parts with sexual or intimate parts of the person.”             18 Pa.C.S. §

3126(b)(3)(iii).

      The relevant statutes do not define or include a list of qualifying

“sexual or intimate parts.” As this Court has explained,

      [t]he separate crime of indecent assault was established because
      of a concern for the outrage, disgust, and shame engendered in
      the victim rather than because of physical injury to the victim.
      Due to the nature of the offenses sought to be proscribed by the
      indecent assault statute, and the range of conduct proscribed,
      the statutory language does not and could not specify each
      prohibited act.

Commonwealth v. Provenzano, 50 A.3d 148, 153 (Pa. Super. 2012).




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         It is clear that “sexual” and “intimate parts” are not limited to

genitalia.      While interpreting the statute codifying Indecent Assault, this

Court has consistently made it clear that

         [t]he language of the statutory section defining indecent contact
         includes both “sexual” and “other intimate parts” as possible
         erogenous zones for purposes of prosecution. Therefore, the
         phrase “other intimate parts” cannot refer solely to genitalia, as
         such a construction ignores the distinction between “sexual” and
         “other intimate parts,” making the latter term redundant.

Commonwealth v. Capo, 727 A.2d 1126, 1127 (Pa. Super. 1999).

         In the instant case, Appellant does not argue that the victim’s thighs

do not constitute an “intimate part” under Section 3126(b)(iii).              Instead,

Appellant ignores the fact that A.M. testified that Appellant rubbed his penis

on her thighs and attempted to push his penis down her shorts. Appellant’s

conduct of rubbing his penis against A.M.’s thighs is sufficient in and of

itself     to   sustain   a   conviction    for   F-3   Indecent   Assault.       See

Commonwealth v. Fisher, 47 A.3d 155, 158 (Pa. Super. 2012) (“The

backs of the legs can be intimate parts of the body, just as the shoulders,

neck, and back were in Capo, [supra] when touched for the purpose of

arousing or gratifying sexual desire.”).

         Moreover, we have previously held that the mouth is included within

the definition of “other intimate parts.”         See Commonwealth v. Evans,

901 A.2d 528, 537 (Pa. Super. 2006) (holding that appellant's inserting his

tongue into the victim's mouth constituted Indecent Assault).




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     Nonetheless, Appellant attempts to distinguish the instant case from

Evans, drawing a bright line between the inside of a person’s mouth and her

lips. We find this argument wholly unpersuasive. Mouths, including lips, are

both an intimate part of a person and a possible erogenous zone.               See

Capo, supra, at 1127. Moreover, this Court has no doubt that having one’s

lips and mouth forcibly applied to another’s penis engenders the type of

“outrage,     disgust,   and    shame”   our   legislature   sought   to   prevent.

Provenzano, supra, at 153.

     Therefore, we conclude that the evidence was sufficient to convict

Appellant of F-3 Indecent Assault where he used his penis, a sexual organ,

to forcibly touch his 8 year-old-victim’s “intimate parts,” namely, her mouth

and thighs.

                               Weight of the Evidence

     Appellant next avers that the jury’s verdict was against the weight of

the evidence, averring that A.M.’s testimony was not credible because of her

delay in reporting the abuse and inconsistencies between her trial testimony

and her prior statements. Appellant’s Brief at 17.

     When considering challenges to the weight of the evidence, we apply

the following precepts:

        The weight of the evidence is exclusively for the finder of
        fact, who is free to believe all, none or some of the
        evidence and to determine the credibility of witnesses.

        Appellate review of a weight claim is a review of the
        exercise of discretion, not the underlying question of


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        whether the verdict is against the weight of the evidence.
        Because the trial judge has had the opportunity to hear
        and see the evidence presented, an appellate court will
        give the gravest consideration to the findings and reasons
        advanced by the trial judge when reviewing a trial court’s
        determination that the verdict is against the weight of the
        evidence. One of the least assailable reasons for granting
        or denying a new trial is the lower court’s conviction that
        the verdict was or was not against the weight of the
        evidence and that a new trial should be granted in the
        interest of justice.

Commonwealth v. Talbert, 129 A.3d 536, 545-46 (Pa. Super. 2015)

(internal quotation marks and citations omitted).

     “Resolving contradictory testimony and questions of credibility are

matters for the finder of fact.” Commonwealth v. Hopkins, 747 A.2d 910,

917 (Pa. Super. 2000). Further, “[i]n order for a defendant to prevail on a

challenge to the weight of the evidence, the evidence must be so tenuous,

vague and uncertain that the verdict shocks the conscience of the court.”

Talbert, supra at 546 (internal quotation marks and citation omitted). It is

well-settled that we cannot substitute our judgment for that of the trier of

fact. Id. at 545.

     Appellant essentially asks us to reassess the credibility of the

witnesses and reweigh the testimony and evidence presented at trial.

Appellant’s Brief at 16-17. We cannot and will not do so. At trial, defense

counsel cross-examined A.M. about the inconsistencies that Appellant now

complains of on appeal, as well as her delay in reporting the assaults.

Nonetheless, the jury found credible A.M.’s testimony that Appellant sexually



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abused her. This verdict was not so contrary to the evidence as to shock the

court’s conscience, and the trial court properly denied Appellant’s weight of

the evidence claim.

                      Discretionary Aspects of Sentence

     In his third issue, Appellant challenges the discretionary aspects of his

sentence.   A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right. See Commonwealth v. Hill,

66 A.3d 359, 363 (Pa. Super. 2013). Rather, where, as here, the appellant

has preserved the sentencing challenge for appellate review by raising it at

sentencing or in a timely post-sentence motion, the appellant must (1)

“include in his brief a concise statement of the reasons relied upon for

allowance of appeal with respect to the discretionary aspects of a

sentence[,]” pursuant to Pa.R.A.P. 2119(f); and (2) “show that there is a

substantial question that the sentence imposed is not appropriate under the

Sentencing Code.” Id. at 363-64.

     In the instant case, Appellant filed a timely notice of appeal and a

timely post-sentence motion. He also included a separate Pa.R.A.P. 2119(f)

statement in his appellate brief. Moreover, Appellant’s claim—that the trial

court “failed to offer reasons for its sentence” and imposed an unreasonable

sentence while ignoring the sentencing guidelines and relevant sentencing

criteria—presents     a   substantial     question   for   our   review.   See

Commonwealth v. Scassera, 965 A.2d 247, 250 (Pa. Super. 2009)



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(holding that a claim that the sentencing court failed to consider the

applicable sentencing guidelines, prior to exceeding them, presents a

substantial question); Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa.

Super. 2008) (holding that an “[a]ppellant’s contention that the sentencing

court exceeded the recommended range in the Sentencing Guidelines

without an adequate basis raises a substantial question for this Court to

review.”).

      Accordingly, we turn to the merits of Appellant’s claim, mindful of our

standard of review:

      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. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation

omitted).

      Where a trial court imposes a sentence outside of the sentencing

guidelines, 42 Pa.C.S. § 9721(b) requires the trial court to provide, in open

court, a “contemporaneous statement of reasons in support of its sentence.”

Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012).              To

satisfy the requirements of Section 9721(b), the trial court must:

      demonstrate on the record, as a proper starting point, its
      awareness of the sentencing guidelines. Having done so, the
      sentencing court may deviate from the guidelines, if necessary,


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      to fashion a sentence which takes into account the protection of
      the public, the rehabilitative needs of the defendant, and the
      gravity of the particular offense as it relates to the impact on the
      life of the victim and the community, so long as it also states of
      record the factual basis and specific reasons which compelled it
      to deviate from the guideline range.

Id. (brackets and citation omitted).

      The on-the-record disclosure requirement does not require the trial

court to make “a detailed, highly technical statement.” Commonwealth v.

Hunzer, 868 A.2d 498, 514 (Pa. Super. 2005). Where the trial court has

the benefit of a presentence investigation (“PSI”), our Supreme Court has

held that “it is presumed 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.”              Commonwealth v.

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

Commonwealth v. Devers, 546 A.2d 12, 18-19 (Pa. 1988)). Where the

trial court has reviewed the PSI, it may properly “satisfy the requirement

that reasons for imposing sentence be placed on the record by indicating

that he or she has been informed by the [PSI]; thus properly considering

and weighing all relevant factors.”        Ventura, supra at 1135 (citation

omitted).

      Finally, where the trial court deviates above the guidelines, this Court

may only vacate and remand a case for resentencing if we first conclude that

“the sentencing court sentenced outside the sentencing guidelines and the

sentence is unreasonable.”        42 Pa.C.S. § 9781(c)(3).           Although the


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Sentencing Code does not define the term “unreasonable,” our Supreme

Court has made clear that “rejection of a sentencing court's imposition of

sentence on unreasonableness grounds [should] occur infrequently, whether

the sentence is above or below the guideline ranges, especially when the

unreasonableness inquiry is conducted using the proper standard of review.”

Commonwealth v. Walls, 926 A.2d 957, 964 (Pa. 2007).

      In the instant case, the trial court sentenced Appellant to a minimum

sentence at or near the top of the Sentencing Guidelines’ aggravated range,

and to a maximum sentence at the statutory limit. The trial court also set

those sentences to run concurrent to one another.            Although these

sentences fell outside of the standard sentencing range, we do not agree

with Appellant that the trial court abused its discretion, failed to state

sufficient reasons, or otherwise erred in imposing an aggregate sentence of

3½ to 15 years of incarceration, with credit for 348 days of time served.

      Prior to imposing sentence, the trial court made a lengthy statement,

on the record, explaining its decision:

      All right.    I’ve had an opportunity to review the relevant
      materials. I’ve reviewed, of course, the PSI. I’ve taken that into
      account.

      I’ve taken into account the testimony that I heard during the
      course of the trial of this case.

      I have taken into account the fact that the Sexual Offender
      Assessment Board has determined that the defendant does not
      meet the statutory criteria to be classified as a sexually violent
      predator.




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     I’ve taken into account also especially the jury’s verdict, which is
     paramount. And the jury’s verdict was to the effect that the
     defendant was convicted of these serious offenses, but he was
     not guilty of even more serious offenses [namely, Criminal
     Attempt to Commit Rape of a Child and Criminal Attempt to
     Commit IDSI with a Child]. The Court cannot impose sentence
     as though that is not what occurred.

     So I’ve had to take into account also what the Sentencing
     Guidelines provide here.     And one of the most important
     components, of course, of the Sentencing Guidelines deals with
     the prior record of the defendant. And the defendant’s prior
     record here is not particularly serious, both in the number of
     offenses and in the nature of them, which generates a prior
     record score of one.

     I have taken into account also the nature of this case. These
     cases are among the most troubling that we have. Damage is
     done, families sometimes completely destroyed. And there is
     not a thing that I can do sitting here to change that. No
     sentence that I impose can repair those damages. It simply is
     not possible for me to do so. So I must look to the question of
     what the sentence ought to be by examining the provisions of
     the Sentencing Code, the Sentencing Guidelines.

     And I’ve taken into account also not only the testimony I heard
     during the course of the trial but [the victim’s mother’s]
     testimony here today with respect to the impact that this has
     had on the family. I will tell you that I am not unhappy that the
     victim is not here today. It’s often been my view that the more
     times that the victims have been exposed to these surroundings
     even at this stage of the proceedings where sentence is about to
     be imposed, that the effect on them I believe is prolonged by
     more exposures here in the court. That does not mean I’m not
     taking into account the victim and the victim’s circumstances.

     Our law recognizes that in cases of this nature, rehabilitative
     needs are often great. And the law provides both specifically
     through the SORNA process as well as through the parole
     process that counseling and treatment are necessary
     components and the Court need not specifically delinate what
     they shall be. The statute itself will set forth the registration
     requirements, and the Bureau of Corrections and the Board of
     Probation and Parole have the largest hand in determining what
     the nature of treatment and counseling shall be.


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                                       ...

       The sentences imposed are in the aggravated range although the
       sentence imposed [for F-3 Indecent Assault] is not at the top of
       the aggravated range, but it is a sentence that is under the
       statutory maximums. Under the guidelines that the court must
       examine, I believe that this is a harsh sentence under the
       circumstances for the offenses for which the defendant was
       convicted. It will require supervision for many years. And I
       believe that under the circumstances, it’s an appropriate
       sentence.

N.T., Sentencing, 12/21/15, at 16-20.

       Based on all of the foregoing, we conclude that the trial court did not

abuse its discretion in imposing a sentence in the aggravated range of the

sentencing guidelines. Although the trial court set the sentences imposed on

each   count   to   run   consecutively,   the   aggregate   sentence   was   not

unreasonable. Moreover, the trial court, having considered Appellant’s PSI,

the results of his Sexual Offender Assessment, and other pertinent

aggravating and mitigating information, did not abuse its discretion in

sentencing Appellant to an aggregate sentence of 3½ to 15 years of

imprisonment. Thus, Appellant’s argument to the contrary lacks merit.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/27/2016




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