Commonwealth v. Toro

270 A.3d 1150 (Table)

COMMONWEALTH of Pennsylvania

v.Alfredo TORO, Appellant

Commonwealth of Pennsylvania

v.Alfredo Toro, Appellant

No. 1918 EDA 2019

No. 1919 EDA 2019

Superior Court of Pennsylvania.

Filed December 21, 2021

MEMORANDUM BY COLINS, J.:

Appellant, Alfredo Toro, appeals from the judgments of sentence following his conviction of rape by forcible compulsion, sexual assault, unlawful restraint, defiant trespass, recklessly endangering another person ("REAP"), and two counts of simple assault.¹ We reverse Appellant's convictions of REAP and unlawful restraint, affirm his remaining convictions, and remand for resentencing.

On December 19, 2015, Estrella Colon and Manuel Sanchez, who were engaged to be married, called Appellant, Ms. Colon's cousin, to help them move from their second-floor apartment on the 3400 block of Helen Street in Philadelphia. When Appellant arrived, he got into an altercation with Mr. Sanchez and slapped and punched Mr. Sanchez in the face. Appellant chased Mr. Sanchez out onto the street, and sometime later Appellant returned and knocked on the front door of the building. Ms. Colon opened the door to the apartment building thinking Mr. Sanchez had returned and Appellant then pushed his way into the building and into Ms. Colon's apartment. Once inside the apartment, Appellant pushed, grabbed, and kissed Ms. Colon, and offered her $200 to have sex with him, which she refused. Despite Ms. Colon's efforts to push him away, Appellant pulled Ms. Colon's pants down and penetrated her vagina with his penis. Appellant then fled from the apartment and the police arrived shortly thereafter.

Appellant was charged at two docket numbers: at CP-51-CR0003230-2016 ("3230-2016"), he was charged with rape by forcible compulsion, sexual assault, unlawful restraint, defiant trespass, REAP, and simple assault of Ms. Colon. At CP-51-CR0003231-2016 ("3231-2016"), Appellant was charged with simple assault of Mr. Sanchez. Appellant proceeded to a non-jury trial at both dockets, which took place on May 8 and December 5, 2018. At the conclusion of the trial, the trial court convicted him of all counts.

On February 26, 2019, the trial court imposed an aggregate sentence of 14½ to 29 years at 3230-2016, consisting of consecutive terms of imprisonment of 10 to 20 years on the rape count, 2½ to 5 years on the unlawful restraint count, 1 to 2 years on the REAP count, and 1 to 2 years on the simple assault count.² The trial court imposed a further consecutive sentence of 1 to 2 years of imprisonment on the simple assault conviction at 3231-2016. On March 1, 2019, Appellant filed timely post-sentence motions at both dockets. Both motions were denied by operation of law, and Appellant filed timely notices of appeal in each matter.³

Appellant raises nine issues in this appeal. At 3230-2016, Appellant challenges the sufficiency of the evidence of each of his six convictions. He also argues that the verdict in 3260-2016 was against the weight of the evidence. Finally, Appellant argues that the trial court abused its discretion at both dockets by imposing manifestly excessive sentences without consideration of mitigating evidence and his rehabilitative needs.

Sufficiency of the Evidence

A challenge to the sufficiency of the evidence presents a question of law and is subject to plenary review under a de novo standard. Commonwealth v. Smith , 234 A.3d 576, 581 (Pa. 2020). When reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth, were sufficient to prove every element of the offense beyond a reasonable doubt. Id.

"[T]he facts and circumstances established by the Commonwealth need not preclude every possibility of innocence." Commonwealth v. Wallace , 244 A.3d 1261, 1274 (Pa. Super. 2021) (citation omitted). "The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence." Wallace , 244 A.3d at 1274 (citation omitted). As an appellate court, "we may not weigh the evidence and substitute our judgment for that of the fact-finder." Id. (citation omitted).

Appellant first argues that there was insufficient evidence to prove that he committed the offenses of rape by forcible compulsion and sexual assault. With respect to the rape conviction, Appellant argues that a "careful reading of the testimony [ ] indicates that Appellant [ ] did not have sexual intercourse with Ms. Colon, by forcible compulsion or otherwise." Appellant's Brief at 26. Appellant contends that Ms. Colon testified only that Appellant put his penis on or near her vagina, but she did not state his penis penetrated her vagina. With respect to the sexual assault conviction, Appellant likewise asserts that Ms. Colon's testimony does not establish that sexual intercourse occurred. Id. at 29-30.

The offense of rape by forcible compulsion is committed "when the person engages in sexual intercourse with a complainant ... [b]y forcible compulsion." 18 Pa.C.S. § 3121(a)(1). An individual commits the offense of sexual assault if he "engages in sexual intercourse or deviate sexual intercourse with a complainant without the complainant's consent." 18 Pa.C.S. § 3124.1. Sexual intercourse is defined in relevant part to include intercourse in "its ordinary meaning ... with some penetration however slight; emission is not required." 18 Pa.C.S. § 3101. "The ‘ordinary meaning’ of sexual intercourse is not defined in the statute, but it refers to penetration of the vagina by the penis." Commonwealth v. Brown , 711 A.2d 444, 450 (Pa. 1998).

While Ms. Colon's initial testimony with respect to the sexual contact between herself and Appellant was ambiguous,⁴ the assistant district attorney asked Ms. Colon to demonstrate to the court the nature of the contact using her hands, and Ms. Colon indicated in this manner that Appellant's penis penetrated her vagina.⁵ Furthermore, on cross and redirect examination, Ms. Colon testified unequivocally regarding the penetration:

[Defense counsel:] And when the prosecutor approached and you put your fingers inside, you said that [Appellant] penetrated your vagina with his penis; is that correct?

[Ms. Colon:] Yes, sir.

...

[Defense counsel:] Today you talked about [how Appellant's] penis went inside of your vagina.

You were penetrated, correct?

[Ms. Colon:] Yes, sir.

...

[Assistant district attorney:] So is it fair to say that your testimony remains that you felt his penis enter your vagina but not all [the] way into your vagina?

[Ms. Colon:] Yes, ma'am.

[Assistant district attorney:] But it still penetrated you, correct?

[Ms. Colon:] Yes, ma'am.

N.T., 5/7/18, at 46, 52, 61; see also id. at 53, 60. In addition, Ms. Colon indicated that, as a result of Appellant's actions, she suffered pain in her vagina. Id. at 25, 54.

We conclude that Ms. Colon's testimony was sufficient evidence to show that Appellant's penis penetrated her vagina, thereby satisfying the sexual intercourse element of the rape and sexual assault offenses. 18 Pa.C.S. § 3101 ; Brown , 711 A.2d at 450 ; see also Commonwealth v. Gonzalez , 109 A.3d 711, 721 (Pa. Super. 2015) (in a sexual assault case, "[t]he victim's uncorroborated testimony is sufficient to support a rape conviction").

Appellant next argues that there was insufficient evidence to convict him of defiant trespass. "A person commits [defiant trespass] if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by ... actual communication to the actor[.]" 18 Pa.C.S. § 3503(b)(1)(i). To establish a violation of this offense, the Commonwealth was required to show that Appellant "1) entered or remained upon property without a right to do so; 2) while knowing that he had no license or privilege to be on the property; and 3) after receiving direct [ ] notice against trespass," in the form of an actual communication. Commonwealth v. Namack , 663 A.2d 191, 194 (Pa. Super. 1995) (emphasis omitted). This offense thus includes a scienter element requiring that the offender have knowledge that he was not permitted on the subject property. Id. "A person acts knowingly with respect to a material element of an offense when[,] if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist[.]" 18 Pa.C.S. § 302(b)(2)(i).

Appellant argues that, because Mr. Sanchez and Ms. Colon invited him to their home on December 19, 2015 to help them move, the Commonwealth did not prove that Appellant was given direct notice that he was not allowed in their home or that he had knowledge that he was not permitted to enter. Appellant's Brief at 31. As Appellant points out, the record was clear that he was initially an invitee to the second-floor apartment shared by Ms. Colon and Mr. Sanchez to assist them in moving. N.T., 5/7/18, at 13-14, 65-66. However, once he arrived, Appellant immediately confronted Mr. Sanchez, chasing him around the apartment and pushing him. Id. at 14-17, 38. Mr. Sanchez then exited the apartment, ran downstairs, and through the front door of the apartment onto the street while Appellant continued to chase and strike Mr. Sanchez. Id. at 16, 39.

Ms. Colon locked the door of the apartment building and returned to her apartment while the altercation continued outside. Id. at 17. At some point later she heard a knock on the front door of the building, which she assumed to be Mr. Sanchez. Id. at 18-19, 40-41. However, upon descending the stairs, she discovered that it was in fact Appellant at the front door. Id. at 19. Ms. Colon described these events at trial as follows:

It was [Appellant at the door], and he wanted to come in the building, in the house, and I said no, he had to leave.

Instead, he blocked the door with his foot and pushed himself in

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