Commonwealth v. Diaz

152 A.3d 1040

COMMONWEALTH of Pennsylvania, Appellee

v.Hamett DIAZ, Appellant

No. 3165 EDA 2015

Superior Court of Pennsylvania.

Argued August 31, 2016

FILED DECEMBER 16, 2016

Paul P. Ackourey, Tunkhannock, for appellant.

Michael T. Rakaczewski, Assistant District Attorney, Stroudsburg, for Commonwealth, appellee.

BEFORE: BOWES, J., OTT, J., and SOLANO, J.

OPINION BY OTT, J.:

Hamett Diaz appeals from the judgment of sentence imposed on May 28, 2015, in the Monroe County Court of Common Pleas. The trial court sentenced Diaz to an aggregate term of 12 to 24 years' imprisonment following his jury conviction of rape of an unconscious person,¹ corruption of minors,² and related charges for the sexual assault of his stepdaughter's 17-year-old friend. On appeal, Diaz challenges both the sufficiency and weight of the evidence supporting his convictions, as well as the trial court's imposition of a mandatory minimum sentence.³ Because we conclude the trial court erred in determining Diaz had committed a prior crime of violence justifying the imposition of his mandatory minimum sentence, we vacate the judgment of sentence in part and remand for resentencing. In all other respects, we affirm the convictions.

The facts underlying Diaz's conviction are aptly summarized by the trial court as follows:

[Diaz] is the stepfather of K.C., a 15 year old female. K.C. has a 17 year old friend, K.O., who is the victim (hereinafter referred to as "Victim" ...). On October 19, 201[3], at around 12:00 p.m., [Diaz] drove K.C. and Victim from Blakeslee, Monroe County, Pennsylvania to New York City, NY, so that K.C. and Victim could get their nails done. During the drive, [Diaz] furnished K.C. and Victim with alcohol. [Diaz] also drank alcohol. While in New York when K.C. was getting her nails done, [Diaz] and Victim went to a liquor store in order to purchase more alcohol.

After K.C. and Victim were finished with their nails, [Diaz], K.C., and Victim headed back to Pennsylvania. Upon returning to Pennsylvania, they stopped at a Burger King restaurant for Victim to use the bathroom. Victim was so intoxicated, she required assistance walking to and using the bathroom. Around 11:00 p.m., [Diaz], K.C. and Victim arrived back at [Diaz] and K.C.'s home in Blakeslee. When they arrived at the home, [Diaz] sent K.C. into the house to see if K.C.'s mother, [Diaz's] wife, was awake.

After K.C. went into the house, [Diaz] drove off with the Victim to a secluded service road. At this point, Victim began zoning in and out. After pulling onto the service road, Victim recalls [Diaz] getting out of the minivan, opening the trunk door, [and] laying out the backseat. [Diaz] then called Victim to move to the back of the minivan. When Victim moved to the back of the minivan she hit her head. The next thing Victim recalls she was lying on her back in the rear of the minivan. Victim then remembers [Diaz] putting his mouth on her vagina. Victim recalls [Diaz] putting his penis in her vagina. She testified that she was in and out of consciousness and that she was so intoxicated she was slurring her words and unable to speak.

[Diaz] and Victim arrived back at [Diaz] and K.C.'s house and she was unable to walk. [Victim] stated she "crawled" up the stairs. When Victim entered the house, she was crying and she immediately told K.C. that she and [Diaz] had driven down the mountain and she believed "something may have happened." K.C. then helped Victim wash up, get changed, and get into bed.

Victim later woke up around 4:00 a.m. on October 20, 2014, and told K.C. that she thought [Diaz] had sex with her. K.C. confirmed that Victim had come back to the house crying. Victim then called her ex-boyfriend about the incident. Victim's ex-boyfriend told his mother; the ex-boyfriend's mother called Victim's mother who called the police. Victim's mother then drove to [Diaz's] house and waited with Victim until the police arrived. The police arrived with an ambulance and Victim was transported to the hospital.

Trial Court Opinion, 10/2/2015, at 1–3.

Diaz was subsequently arrested and charged with numerous sexual offenses based on his assault of the victim, both while she was intoxicated and without her consent. On February 12, 2015, a jury returned a verdict of guilty on the charges of rape (unconscious person), unlawful contact with minor, sexual assault, aggravated indecent assault (without consent), indecent assault (without consent and unconscious person), corruption of minors (two counts), furnishing liquor to minors (two counts) and endangering the welfare of a child.⁴ The jury found Diaz not guilty of involuntary deviate sexual intercourse.⁵

On February 13, 2015, the Commonwealth provided Diaz with notice of its intent to seek a 25–year mandatory minimum sentence pursuant to 42 Pa.C.S. § 9714(a)(2) on the rape conviction.⁶ Specifically, the Commonwealth averred Diaz had been convicted of two prior crimes of violence: (1) a 1998 New York conviction for attempted robbery 3^rddegree; and (2) a 2001 federal conviction for conspiracy to commit robbery and use of a firearm. See Notice of Mandatory Sentencing Pursuant to 42 Pa.C.S. § 9714, 2/13/2015, at ¶¶ 7–8. At the May 28, 2015, sentencing hearing, the trial court found the Commonwealth failed to establish Diaz's New York conviction constituted an equivalent crime of violence under Section 9714. See N.T., 5/28/2015, at 20. Nevertheless, the court concluded that Diaz's federal conviction was an equivalent prior crime of violence, and, pursuant to Section 9714(a)(1), sentenced him to a mandatory minimum term of 10 to 20 years' imprisonment for the charge of rape. In addition, the trial court imposed two consecutive terms of one to two years' imprisonment for the charges of corruption of minors, and concurrent terms of eight to 16 years' imprisonment and 18 to 36 months' imprisonment for the charges of unlawful contact with minor and endangering the welfare of a child, respectively. The court found the remainder of Diaz's convictions merged for sentencing purposes.

On June 4, 2015, Diaz filed a timely post-sentence motion seeking reconsideration of his sentence, and challenging the weight and sufficiency of the evidence supporting the jury's verdict. The trial court entered an order on October 2, 2015, denying Diaz's motion, and this timely appeal follows.⁷

Diaz first argues the evidence was insufficient to support his conviction of the sexual offenses. Specifically, he argues the Commonwealth failed to prove the victim was either "unconscious or unaware that sexual activity was occurring." Diaz's Brief at 27.

Our review of a challenge to the sufficiency of the evidence is guided by the following:

There is sufficient evidence to sustain a conviction when the evidence admitted at trial, and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict-winner, are sufficient to enable the fact-finder to conclude that the Commonwealth established all of the elements of the offense beyond a reasonable doubt. The Commonwealth may sustain its burden "by means of wholly circumstantial evidence." Further, we note that the entire trial record is evaluated and all evidence received against the defendant is considered, being cognizant that the trier of fact is free to believe all, part, or none of the evidence.

Commonwealth v. Martin , 627 Pa. 623, 101 A.3d 706, 718 (2014) (internal citation omitted), cert. denied , ––– U.S. ––––, 136 S.Ct. 201, 193 L.Ed.2d 155 (2015).

Here, Diaz challenges only the victim's state of consciousness during the alleged sexual assault.⁸ See Diaz's Brief at 27. Under the charges of rape and indecent assault, Diaz was convicted of engaging in sexual activity with the victim while she was "unconscious" or "unaware" that the sexual contact was occurring. See 18 Pa.C.S. §§ 3121(a)(3) (rape) and 3126(a)(4) (indecent assault). Similarly, for the charges of sexual assault and aggravated indecent assault, he was convicted of engaging in sexual contact with the victim without her consent,⁹ which, according to Diaz, the Commonwealth established by the victim's unconscious state. See Diaz's Brief at 27. Diaz argues the evidence was insufficient to demonstrate the victim was unconscious at the time of the sexual assault because her testimony established she was "very much aware not only of her surroundings, but was cognizant of the acts being perpetrated upon her." Id. at 28. He maintains "[w]hile the evidence may have established that the complaining witness was inebriated, inebriation is not the equivalent of unconsciousness."Id. at 28–29, citing Commonwealth v. Erney , 548 Pa. 467, 698 A.2d 56, 60 (1997) (Nigro J. dissenting).

Diaz's reliance on the dissenting opinion in Erney , supra , is telling, as the facts in that case are almost identical to those presented here. In Erney , the defendant provided the 15-year-old victim with alcohol and marijuana. Erney , supra , 698 A.2d at 57–58. When the victim was "so intoxicated as to be unable to move or speak," the defendant sexually assaulted her. Id. at 58. The next day, the victim was "uncertain as to whether the assault had actually occurred" until she confirmed it with a friend who had witnessed the assault. Id. Similar to the present case, the defendant was convicted of rape of an unconscious person under Section 3121(a)(3). On appeal, the defendant argued:

[H]e should be discharged because the victim had some sense of awareness of what was occurring during the assault, as evidenced by her recollection that [the defendant] had touched her and had penetrated her vagina with his penis, and thus that the victim was not "unconscious" within the meaning of the statute.

Id.

The Pennsylvania Supreme Court rejected the defendant's claim that the statute "protects only those individuals who were completely unaware of the event throughout the duration of the sexual assault upon them." Id. at 59. Rather, the Court found both the plain meaning of the...