Commonwealth v. Soto

1

COMMONWEALTH OF PENNSYLVANIA v. GUSTAVO SOTO Appellant COMMONWEALTH OF PENNSYLVANIA Appellant v. GUSTAVO SOTO

Nos. 474 EDA 2023, 618 EDA 2023

No. J-S40021-23

Superior Court of Pennsylvania

June 18, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered December 6, 2022 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0001489-2021

BEFORE: NICHOLS, J., SULLIVAN, J., and COLINS, J. ^[*]

MEMORANDUM

SULLIVAN, J.

The Commonwealth appeals from Gustavo Soto's ("Soto") judgment of sentence following his conviction of endangering welfare of children ("EWOC").^[1] Soto's cross-appeal challenges the weight of the evidence. We affirm.

The facts relevant to these appeals are as follows. On April 5 2022, the trial court granted Soto's pre-trial motion in limine to admit evidence relating to the minor victim's knowledge about sexual matters as an exception to the Rape Shield Statute^[2] and denied the Commonwealth's motion to preclude that evidence.

At Soto's jury trial, which began the next day, J.B.M., the victim, testified she lived with her mother and her stepfather, Soto, whom she called "Poppy," in Pennsylvania when she was in second grade, and during her fourth through sixth grade years after one year in Puerto Rico. See N.T., 4/6/22, at 24-28. She stated Soto penetrated her vagina with his finger when she was in third grade and did so periodically when they were home alone together after the family returned to Pennsylvania. See id. at 29-32, 55. J.B.M. averred that, on one occasion, Soto put his mouth on her vagina, and on another, he licked and bit her breasts and made her touch his penis. See id. at 33-36, 83-84. J.B.M. maintained on the last occasion Soto partially penetrated her vagina with his penis, causing her extreme pain. See id. at 36-39, 117. When she told him to stop, he did and apologized. See id. J.B.M. noted that, later that day, she sent her mother a text revealing Soto inappropriately touched her. See id. at 43-44, 122-23. J.B.M. explained that, after a discussion with her mother, she agreed to "start[] from zero." See id. at 46. J.B.M. stated Soto later confronted her and said, "If you're old enough to be making accusations, then you're . . . old enough to be . . . fending for yourself," and "if you do, you'll see where you end up." See id. J.B.M.'s mother sent the child to live with her father and stepmother in Texas, where she has lived since then. See id. at 49-50, 143-44.^[3]

In April 2022, the jury convicted Soto of EWOC,^[4] and found him not guilty of a series of sexual offenses.^[5] The court ordered a presentence investigation report ("PSI"). When prepared, the PSI stated^[6] Soto was involved in a plot to kill J.B.M. to prevent her testimony and attached federal criminal complaints against two men allegedly paid to kill the victim.^[7] Soto moved to strike the PSI's reference relating to the murder plot.

In September 2022, the court convened a hearing on Soto's motion. Relevant to alleged threats to the victim, the court stated that, before trial, Chief Deputy Loncki told the court the District Attorney's Office had contacted her about threats Soto allegedly made to prevent J.B.M. from testifying. The court stated Deputy Loncki asserted the trial prosecutor had no concerns about security at trial. See N.T., 9/22/22, at 2-5.^[8] Soto asserted he first learned about the alleged threat to kill J.B.M. when he received the PSI. See id. at 18-26. The court struck the allegations concerning the threat but stated at the forthcoming sentencing hearing it would admit the testimony of witnesses with knowledge relating to the threats. See id. at 26-27, 30.

The parties appear for sentencing in November 2022. The court sustained a hearsay objection when the victim's father began to testify about the FBI investigation of a plot to kill J.B.M. See id. at 33-35. The prosecutor objected to the entire PSI as hearsay. See id. J.B.M. testified that Soto's conduct had dramatically changed her life. See id. at 38-39.

The court stated the standard range sentence called for a sentence of restorative sanctions to nine months of imprisonment. See id. at 56. After a lengthy discussion of the facts it considered in sentencing, the court imposed a sentence of four years of probation and ordered Soto not to have any unsupervised contact with J.B.M. or children other than his biological children. See id. at 59.

Soto filed a timely post-sentence motion challenging the weight of the evidence. The Commonwealth filed a timely post-sentence motion and a motion for recusal. In February 2023, the court denied all the motions. The Commonwealth timely appealed and Soto timely cross-appealed. The parties and the court complied with Pa.R.A.P. 1925.

Soto raises one issue for our review:^[9]

Was the verdict of guilty as to [EWOC] against the weight of the evidence?

The Commonwealth raises nine issues for our review:

A. Pre-Trial:

1) Did the trial court err in denying the Commonwealth's motion in limine but granting [Soto's] motion regarding the admission of evidence of past sexual activity of the minor victim prohibited by the Rape Shield statute . . .?

B. Sentencing:

1) Did the trial court err in granting [Soto's] motion to strike portions of the PSI and ordering portions of the PSI stricken without sufficient basis, even after the court was already aware of the allegations?

2) Did the trial court err in preventing the victim and her family from offering full prior comment on the sentencing, including the oral victim impact statement detailing the physical, psychological[,] and economic effects of the crime on the victim and the victim's family, and excluding them from the completion of the original sentencing, and in violation of the Victim[s'] Right[s] Act . . .?

3) Did the trial court err in applying a double standard prohibiting the Commonwealth from introducing "hearsay" but allowing [Soto] to do so and relying on "hearsay" itself at sentencing; not ruling on the Commonwealth's objections to hearsay at sentencing; and preventing the Commonwealth from presenting argument at sentencing?

4) Did the trial court err in suggesting that the factual basis supporting the charge of [EWOC] was [Soto's] "endangerment by not protecting her or getting her help if these allegation-if she's making these allegations["], that "the child's troubled and needs help for making false allegations[,]" and that "[t]here was evidence that instead of reporting her assertions, failure to report, and instead of getting her counseling," that was the conduct that constituted the crime, despite no facts of record supporting the same, instead of criminal sexual misconduct, which was fully supported by the facts of record?

5) Did the trial court err in interpreting [Soto's] acquittal by the jury on charges of rape and other sexual offenses as a specific finding by the jury that no criminal sexual misconduct occurred?

6) Did the trial court err in disregarding the evidence, facts[,] and law, and sentencing norms and guidelines but instead sentencing [Soto] on "what my gut feels appropriate"?

C. Post[-]Sentence:

1) Did the trial court err in denying the Commonwealth's motion for recusal?

2) Did the trial court err in denying the Commonwealth's [motion for] reconsideration of sentence?

Commonwealth's Brief at 6-7 (unnecessary capitalization omitted).

Soto's sole issue implicates the weight of the evidence.

When reviewing a challenge to the weight of the evidence, this Court's standard of review is as follows:

The essence of appellate review for a weight claim appears to lie in ensuring that the trial court's decision has record support. Where the record adequately supports the trial court, the trial court has acted within the limits of its discretion.

A motion for a new trial based on a claim 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. Rather, the role of the trial judge is to determine that notwithstanding the facts, certain facts are so clearly of greater weight that to ignore them or give them equal weight with all the facts is to deny justice.

An appellate court's standard of review when presented with a weight of the evidence challenge is distinct from the standard of review applied by the trial court. Appellate review of a weight claim is a review of the exercise of discretion, not the underlying question of whether the verdict is against the weight of the evidence.

Commonwealth v. Mucci, 143 A.3d 399, 410-11 (Pa. Super. 2016) (citation omitted). To prevail on a weight challenge, a defendant must prove the evidence is "so tenuous, vague and uncertain that the verdict shocks the conscience of the court." See Commonwealth v. Sullivan, 820 A.2d 795, 806 (Pa. Super. 2003).

A person endangers the welfare of children by knowingly violating a duty of care, protection, or support to the child. See 18 Pa.C.S.A. §4304(a)(1). A person who lives with a child and violates a duty of care is within the scope of liability. See Commonwealth v. Leatherby, 116 A.3d 73, 81 (Pa. Super. 2015). Child welfare statutes like EWOC "are designed to cover a broad range of conduct in order to safeguard the welfare and security of . . . children." Commonwealth v. Krock, 282 A.3d 1132, 1138 (Pa. Super. 2022). In determining what conduct constitutes EWOC, "the common sense of the community, as well as the sense of decency, propriety, and the morality which most people entertain is sufficient to apply the statute to each particular case, and to individuate...