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Commonwealth of Pennsylvania v. Primitivo Velez

August 17, 2012

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
PRIMITIVO VELEZ, APPELLANT



Appeal from the Judgment of Sentence March 31, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0010892-2009

The opinion of the court was delivered by: Bowes, J.:

J-S33009-12

BEFORE: BOWES, LAZARUS, and WECHT, JJ.

OPINION BY BOWES, J.:

Primitivo Velez appeals from the judgment of sentence of four to eight years incarceration followed by ten years probation after his convictions for aggravated indecent assault, unlawful contact with a minor, endangering the welfare of a child, corruption of minors, and indecent assault on a person of less than thirteen years of age. We affirm.

The trial court aptly summarized the facts.

In August 2008, defendant [, who was eighty-years-old,] had been living with his son, Eric [V.], his daughter-in-law, Marilyn [V.], and his two granddaughters, including nine-year- old E.V., for approximately three years. Defendant previously had lived in Puerto Rico, but moved to Philadelphia and into his son and daughter-in-law's house when his wife passed away. Defendant lived in a room in the house that served as the family room and the children's playroom, and had a daybed upon which defendant slept. When the children's mother was not home, defendant was the grown up in charge.

On August 15, 2008, Marilyn [V.] prepared dinner for defendant and called out to him that it was ready. When defendant did not answer, Mrs. [V.] went to the family room and found the door closed. When she opened the door, she saw her daughter, E.V., lying on the bed, nude from the waist down, with her knees up and defendant's head between her legs. Mrs. [V.] immediately...knew it was sex. Mrs. [V.] screamed for her husband, E.V. climbed under the bed, and defendant immediately fled the house. At trial, E.V. testified that defendant had touched her vagina with his fingers and mouth on several occasions prior to that incident, and had repeatedly penetrated her vagina with his finger.

After defendant fled the house, he left Philadelphia for his daughter's home in Ohio. While in Ohio, defendant sent a letter addressed to E.V. and Mr. and Mrs. [V.], in which he eluded [sic] to the crime and begged for forgiveness.

Trial Court Opinion, 1/23/12, at 3 (citations to record and quotation marks omitted).

The family did not initially report the crimes. However, Appellant's daughter subsequently contacted her brother, the father of the victim, and asked why he evicted his father from his home. The victim's father explained what transpired, and his sister reported the incident to her therapist. As required, the therapist then informed authorities in Pennsylvania.

Appellant was ultimately arrested in Puerto Rico and returned to Pennsylvania to face criminal charges. On September 3, 2010, Appellant agreed to proceed to a non-jury trial in exchange for the Commonwealth's agreement not to seek the mandatory minimum sentence of ten to twenty years imprisonment on the charge of aggravated indecent assault. See 42 Pa.C.S. § 9718(3). The trial court acquitted Appellant of involuntary sexual deviate intercourse, sexual assault, statutory sexual assault, and incest, but adjudicated him guilty of aggravated indecent assault, unlawful contact with a minor, endangering the welfare of a child, corruption of minors, and indecent assault on a person of less than thirteen years of age.

Subsequently, the court conducted a sexually violent predator hearing. The court did not find Appellant to be a sexually violent predator. Thereafter, the court sentenced Appellant to concurrent terms of four to eight years imprisonment followed by ten years probation for the aggravated indecent assault and unlawful contact with a minor convictions. The court also imposed concurrent probationary sentences of five years on the corruption of minors and endangering the welfare of a child charges. Appellant filed a post-sentence motion challenging both the sufficiency and the weight of the evidence. The trial court denied the motion, and this appeal ensued.

The trial court directed Appellant to file and serve a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied, and requested permission to file a supplemental statement. The court permitted Appellant to file the supplemental statement and the trial court authored its Pa.R.A.P. 1925(a) opinion. Appellant then sought a remand from this Court so that the trial court could clarify the record relative to the grading of Appellant's offenses and Appellant's sentence. This Court granted that request and remanded the matter on October 26, 2011, instructing the trial court to permit Appellant to file an additional supplemental concise statement. Appellant filed his second supplemental Pa.R.A.P. 1925(b) statement on November 3, 2011, and the court issued another Pa.R.A.P. 1925(a) memorandum. The case is now ready for our review. Appellant asserts the following two issues on appeal.

1. Did not the lower court err in finding the evidence sufficient to convict appellant of aggravated indecent assault of a child under 18 Pa.C.S. § 3125(b) as a felony of the first degree where the evidence failed to show that penetration of the complainant's vagina by appellant's fingers was done without consent?

2. Did not the lower court err in finding the evidence sufficient to convict appellant of unlawful contact with minor, 18 Pa.C.S. § 6318(a), as the evidence was insufficient to prove that appellant had "contact" with the complainant for the purposes of engaging in an offense under Chapter 31 of Title 18 where the evidence did not establish that appellant "contacted" the complainant beyond the physical act implicit in the prohibited sexual contact?

Appellant's brief at 3.

Both of Appellant's issues raise challenges to the sufficiency of the evidence. We review such claims under the following established principles of law.

We must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail.

The evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented. It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact-finder. The Commonwealth's burden may be met by wholly circumstantial evidence and any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is ...


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