J-A11013-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

EDWIN COLON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 528 MDA 2023

Appeal from the Judgment of Sentence Entered November 22, 2022

In the Court of Common Pleas of Luzerne County Criminal Division at 

No(s): CP-40-CR-0000650-2020

BEFORE: BOWES, J., STABILE, J., and MURRAY, J.

MEMORANDUM BY BOWES, J.: FILED: MAY 16, 2024

Edwin Colon appeals from the aggregate judgment of sentence of ten to 

twenty years in prison following his convictions of, inter alia, rape and 

involuntary deviate sexual intercourse (“IDSI”). We vacate Appellant’s 

judgment of sentence and convictions and remand for a new trial. 

We glean the following from the certified record. Appellant and the 

victim were married and living together. On August 20, 2019, the victim sent 

a text message to her coworker, requesting that someone call the police 

because she was being assaulted by Appellant. The coworker complied, and 

police responded to the residence that afternoon. The officers interviewed the 

victim with the assistance of a neighbor who acted as a translator, since the 

victim only spoke Spanish. The victim indicated that on numerous occasions 

earlier that day and the day before, Appellant vaginally raped her, forced her 
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to perform oral sex on him, and physically assaulted her. Appellant, who was 

present when police arrived, was arrested after a brief struggle with officers. 

The victim went to the hospital the same day and underwent a sexual 

assault examination, wherein she provided a summary of the assaults to the 

reporting nurse. The nurse determined that the victim had vaginal tearing. 

After she was treated, the victim proceeded to the Plymouth Borough Police 

Station and provided an audio recorded statement. Law enforcement used a 

bilingual officer to translate. The statement recounted the same information 

relayed to officers earlier that day.

Based on the above, Appellant was charged with numerous offenses.

Throughout the prosecution of the case, however, the Commonwealth came 

to learn that the victim was not willing to testify at the non-jury trial. The 

court summarized the following:

At the time of trial, the Commonwealth attempted to 

present the testimony of the victim. Rather than testify, the 

victim invoked her right to remain silent pursuant to the Fifth 

Amendment to the United States Constitution. . . . The 

Commonwealth then declared the victim to be unavailable as a 

witness and indicated that her recorded statement [to police] 

would be played for the [c]ourt. Defense counsel objected to the 

admission of the victim’s statement on several occasions. His 

objections were based on [hearsay and] the Sixth Amendment’s 

right to confrontation and cross-examination. The recorded 

statement was played and admitted into evidence as a 

Commonwealth exhibit.

Trial Court Opinion, 6/1/23, at unnumbered 2-3. The Commonwealth also 

introduced the medical records pertaining to the victim’s sexual assault 

examination.
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At the conclusion of trial, the court found Appellant guilty of one count 

each of rape, IDSI, sexual assault, and simple assault, as well as two counts 

of indecent assault. Appellant was later sentenced as indicated hereinabove. 

This timely appeal followed. Both Appellant and the trial court complied 

with Pa.R.A.P. 1925. Appellant presents us with five issues:

I. Was the evidence at trial insufficient to prove the charges of 

rape, IDSI, sexual assault, both counts of indecent assault[,] 

and simple assault?

II. Did the trial court err in admitting the recorded statement of 

[the victim] because that statement was inadmissible hearsay?

III. Did the trial court violate Appellant’s right to confront his 

accuser, secured by the United States and Pennsylvania 

constitutions, by allowing the Commonwealth to introduce [the 

victim]’s out-of-court recorded statement into evidence?

IV. [Were t]he verdicts against the weight of the evidence where 

the witnesses for the Commonwealth were contradictory, 

inconsistent, and unreliable that it could not be trusted?

V. Did the trial court deny Appellant of a fair trial requiring a new 

trial in the interests of justice and for fundamental fairness?

Appellant’s brief at 11 (cleaned up).

Appellant’s first claim attacks the sufficiency of the evidence as to all his 

convictions. We consider Appellant’s position mindful of the following wellsettled standard of review:

When reviewing a [sufficiency] claim, we face a question of law. 

Accordingly, our standard of review is de novo. We view the 

evidence in the light most favorable to the Commonwealth, as the 

verdict winner, and we draw all reasonable inferences therefrom 

in the Commonwealth’s favor. Through this lens, we must 

ascertain whether the Commonwealth proved all of the elements 

of the crime at issue beyond a reasonable doubt.
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The Commonwealth may sustain its burden of proving every 

element of the crime beyond a reasonable doubt by means of 

wholly circumstantial evidence. Moreover, we may not weigh the 

evidence and substitute our judgment for the factfinder. Any 

doubts regarding a defendant’s guilt may be resolved by the 

factfinder, unless the evidence is so weak and inconclusive that, 

as a matter of law, no probability of fact may be drawn from the 

combined circumstances.

Commonwealth v. Roberts, 293 A.3d 1221, 1223 (Pa.Super. 2023)

(cleaned up). 

A victim’s credible testimony is, by itself, sufficient to uphold a 

conviction. See Commonwealth v. Johnson, 180 A.3d 474, 481 (Pa.Super. 

2018) (holding that “the uncorroborated testimony of a single witness is 

sufficient to sustain a conviction for a criminal offense, so long as that 

testimony can address and, in fact, addresses, every element of the charged 

crime”). Critically, we have observed that “in conducting our analysis, we 

consider all of the evidence actually admitted at trial and do not review a 

diminished record. Consequently, our examination is unaffected by our 

subsequent resolution of the evidentiary issues raised by [the a]ppellant.” 

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa.Super. 2011) (citation 

omitted).

As noted, Appellant challenges every one of his convictions on appeal. 

See Appellant’s brief at 18-21. However, instead of identifying any specific 

element of these crimes that was purportedly unproven, he argues that the 

evidence was insufficient to prove these crimes in toto because the court 

erroneously admitted the victim’s recorded statement to police and the 
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medical records from the sexual assault examination. Id. at 20. In other 

words, Appellant does not contest that the evidence as admitted was 

insufficient, but rather that key evidence should not have been admitted, and 

that without it, the convictions cannot stand.

1

We readily conclude that this argument must fail. As we articulated, our 

review of sufficiency claims considers “all of the evidence actually admitted at 

trial[.]” Koch, 39 A.3d at 1001. Accordingly, the scope of our review entails

the victim’s recorded statement to police, which outlined that on the two days 

in question, Appellant struck the victim numerous times, forced her to engage 

in sexual intercourse against her will, and forced her to perform oral sex on 

him. We also consider the medical records, which contained a summary of 

the events written down by the examining nurse and indicated that the victim 

suffered vaginal tearing. 

Appellant advances no argument as to why this evidence was insufficient 

to prove any particular conviction or element of a conviction. It is not the 

duty of this Court to develop Appellant’s argument for him. See 

Commonwealth v. Freeman, 128 A.3d 1231, 1249 (Pa.Super. 2015) 

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1 The trial court did not address this claim on appeal. Instead, as will be 

discussed more in the body of this memorandum, it found merit in two of 

Appellant’s evidentiary claims, and therefore requested that the matter be 

remanded for a new trial. See Trial Court Opinion, 6/1/23, at unnumbered 4-

5. For its part, the Commonwealth filed a letter in this Court in lieu of a brief, 

also agreeing with the court that the matter should be remanded for a new 

trial based upon the same evidentiary issues.
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(noting that “[w]hile this Court may overlook minor defects or omissions in an 

appellant’s brief, we will not act as his or her appellate counsel”). Therefore, 

we find that the evidence admitted at trial was sufficient to sustain his 

convictions. 

Appellant next contends that the court erred in admitting the victim’s 

recorded police statement at trial because it constituted inadmissible hearsay, 

and that this matter should be remanded for a new trial. See Appellant’s brief 

at 21-24. We note that “[o]ur standard of review for evidentiary rulings, 

including the admission of hearsay, is abuse of discretion.” Commonwealth 

v. Luster, 234 A.3d 836, 838 (Pa.Super. 2020) (citation omitted). 

Our High Court has observed that “[t]o constitute hearsay, a statement 

first must be uttered out-of-court, and then it must be offered in court for the 

truth of the matter asserted in the statement.” Commonwealth v. 

Fitzpatrick, 255 A.3d 452, 458 (Pa. 2021). While hearsay is generally 

inadmissible, “[f]acially inadmissible hearsay still may be introduced as 

substantive evidence for the truth of the matter asserted if the statement falls 

under one of numerous exceptions to the general hearsay proscription.” Id. 

The exception relied upon by the Commonwealth at trial relates to former 

testimony and is found at Pa.R.E. 804(b)(1), which provides thusly:

The following are not excluded by the rule against hearsay if the 

declarant is unavailable as a witness:

(1) Former Testimony. Testimony that:
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(A) was given as a witness at a trial, hearing, or lawful 

deposition, whether given during the current 

proceeding or a different one; and

(B) is now offered against a party who had—or, in a 

civil case, whose predecessor in interest had—an 

opportunity and similar motive to develop it by direct, 

cross-, or redirect examination. 

Pa.R.E. 804(b).

Further, we bear in mind that if evidence is erroneously admitted, we 

are required to vacate the order on review for correction “unless we are 

convinced beyond a reasonable doubt that the error is harmless.” 

Commonwealth v. Murray, 248 A.3d 557, 576 (Pa.Super. 2021) (cleaned 

up). In that vein:

An error cannot be held harmless unless the appellate court 

determines that the error could not have contributed to the 

verdict. Whenever there is a reasonable possibility that an error 

might have contributed to the conviction, the error is not 

harmless. The Commonwealth bears the burden of proving that 

the error was harmless beyond a reasonable doubt.

Fitzpatrick, 255 A.3d at 483 (cleaned up).

Appellant acknowledges that when the victim asserted her Fifth 

Amendment privilege not to testify, she became an “unavailable” witness, just 

as the Commonwealth declared at trial. See Appellant’s brief at 23. However, 

he argues that the victim’s recorded statement to police did not fall within the 

exception pursuant to Pa.R.E. 804(b)(1), as it was not “prior testimony” at a 

prior trial, hearing, or deposition. Id. at 24. 
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In its Rule 1925(a) opinion, the trial court agreed, concluding that while 

the victim was correctly determined to be unavailable as a witness, the 

statement did not meet the exception concerning prior testimony. See Trial 

Court Opinion, 6/1/23, at unnumbered 4. The court further determined that 

the error was not harmless because “[t]he recorded statement was necessary 

to convince this [c]ourt that the Commonwealth had met its burden of proof.” 

Id. at unnumbered 5-6. Accordingly, both Appellant and the trial court 

request that the case be remanded for a new trial.

Upon review, we agree that the recorded statement of the victim was 

erroneously admitted. Since the statement was given in the context of a police 

interview and not at a hearing or deposition, it did not qualify as “former

testimony.” See Commonwealth v. Rivera, 238 A.3d 482, 496 (Pa.Super. 

2020) (stating that the videotaped police interview of the victim’s daughter 

did not satisfy any hearsay exception pursuant to Pa.R.E. 804, including the 

former testimony exception). Additionally, as counsel for Appellant noted 

several times at trial, Appellant never had the opportunity to cross-examine 

the victim as to these statements in any legal proceeding. See 

Commonwealth v. Rolan, 964 A.2d 398, 405 (Pa.Super. 2008) (“[I]n order 

for a witness’s prior testimony to be admissible . . . , the defendant against 

whom the testimony is to be admitted at a subsequent proceeding must have 

been afforded a full and fair opportunity to cross-examine the witness

at the first proceeding.” (cleaned up, emphasis added)). The court thus
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improperly concluded that the Pa.R.E. 804(b) exception to the rule against 

hearsay applied.2 

Moreover, we find that the error in admitting this statement was not 

harmless. Initially, by conceding that Appellant is entitled to relief, the 

Commonwealth cannot meet the burden placed upon it to demonstrate that 

any error was harmless. Fitzpatrick, 255 A.3d at 483. Further, in light of 

the trial court’s explicit acknowledgment that it relied upon the recording in 

rendering its judgment against Appellant, there was more than a “reasonable 

possibility that [this] error might have contributed to the conviction.” Id. We 

note that the victim was purported to be the only eyewitness to the incidents 

of sexual and physical violence. Without the recorded statement or any other 

testimony from the victim, there was not overwhelming evidence introduced 

at trial supporting the various charges. See, e.g., Commonwealth v. 

Roman-Rosa, 311 A.3d 564, 2023 WL 8451800, *9 (Pa.Super. 2023) (nonprecedential decision) (“The fact that credibility is paramount in sexual abuse 

cases renders it virtually impossible for this Court to state that the evidence 

of guilt was so overwhelming, as this would entail an evaluation of [the 

witness]’s credibility”). Since the Commonwealth did not prove that the error 

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2 Furthermore, based on our review, we do not find applicable any other 

hearsay exceptions enumerated at Pa.R.E. 803 (relating to exceptions that 

are permissible regardless of whether the declarant is available as a witness) 

or Pa.R.E. 804 (listing exceptions that apply only when the declarant is 

unavailable as a witness). 
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was harmless beyond a reasonable doubt, we vacate the judgment of sentence 

and remand for a new trial.3

Judgment of sentence and convictions vacated. Case remanded for a 

new trial. Jurisdiction relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 05/16/2024

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3 With respect to Appellant’s remaining issues on appeal, his requested relief 

was for a new trial. See, e.g., Appellant’s brief at 27, 29. Since we grant 

that relief, we do not address those claims.