J-S14025-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RAMON LUIS JUSINO, JR.,

Appellant No. 1376 MDA 2016

Appeal from the Judgment of Sentence May 10, 2016

In the Court of Common Pleas of Lancaster County

Criminal Division at No(s): CP-36-CR-0000848-2015

BEFORE: GANTMAN, P.J., SHOGAN and STRASSBURGER,*JJ.

MEMORANDUM BY SHOGAN, J.: FILED APRIL 12, 2017

Appellant, Ramon Luis Jusino, Jr., appeals from the judgment of 

sentence entered following multiple convictions stemming from illegal sexual 

contact he had with his daughter. We affirm.

The trial court summarized the procedural history of this case as 

follows:

On January 27, 2016, after a four day jury trial, 

[Appellant] was convicted of one count of rape of a child,1two 

counts of involuntary deviate sexual intercourse with a child,2

one count of unlawful contact with a minor,3one count of 

corruption of minors,4one count of incest of a minor5and one 

count of indecent assault.6 

1 18 Pa.C.S. § 3121(c).

____________________________________________

*

 Retired Senior Judge assigned to the Superior Court.
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2 18 Pa.C.S. § 3123(b).

3 18 Pa.C.S. § 6318(a)(1).

4 18 Pa.C.S. § 6301(a)(1)(ii).

5 18 Pa.C.S. § 4302(b)(1).

6 18 Pa.C.S. § 3126(a)(7). 

On May 10, 2016, after a presentence investigation, 

[Appellant] was sentenced to an aggregate term of 31 to 70 

years incarceration. 

On May 20, 2016, [Appellant] filed his motion to 

reconsider sentence. On July 12, 2016, [Appellant] filed an 

amended motion to reconsider sentence. The motion was 

granted, and on August 5, 2016, [Appellant’s] sentence was 

modified to an aggregate term of 22 to 50 years incarceration. 

[Appellant] filed his notice of appeal on August 12, 2016. 

After being granted an extension of time, [Appellant] filed his 

statement of errors complained of on appeal on September 23, 

2016. 

Trial Court Opinion, 10/5/16, at 1-2 (internal citations omitted). The trial 

court filed an opinion pursuant to Pa.R.A.P. 1925(a).

Appellant presents the following issues for our review:

A. Whether the lower court erred when it overruled 

[Appellant’s] objection and found that the victim, A.H. was 

competent to testify at trial?

B. Whether the lower court erred in sustaining the 

Commonwealth’s objection and terminating counsel’s crossexamination which was attacking the credibility of the alleged 

victim?

C. Whether the lower court committed an abuse of 

discretion when it imposed an aggregate sentence of not less 

than 22 nor more than 50 years which was manifestly excessive 

and unduly harsh?
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Appellant’s Brief at 7 (full capitalization omitted). 

Appellant first argues that the trial court erred when it allowed the 

victim, A.H., to testify at trial. Appellant’s Brief at 21. Appellant asserts 

that the alleged victim failed all three prongs of the test used in determining 

competency of a minor witness. Id. at 21-23. 

“The determination of a witness’s competency rests within the sound 

discretion of the trial court.” Commonwealth v. Judd, 897 A.2d 1224, 

1228 (Pa. Super. 2006). “The decision of the trial court will not be disturbed 

absent a clear abuse of that discretion; consequently, as the Superior Court 

has previously observed, ‘our standard of review of rulings on the 

competency of witnesses is very limited indeed.’” Id.

In Pennsylvania, the general rule is that every witness is presumed to 

be competent to be a witness. Commonwealth v. Delbridge, 855 A.2d 

27, 39 (Pa. 2003); Pa.R.E. 601(a). However, young children must be 

examined for competency pursuant to the following test:

There must be (1) such capacity to communicate, including as it 

does both an ability to understand questions and to frame and 

express intelligent answers, (2) mental capacity to observe the 

occurrence itself and the capacity of remembering what it is that 

she is called to testify about and (3) a consciousness of the duty 

to speak the truth.

Delbridge, 855 A.2d at 39 (quoting Rosche v. McCoy, 156 A.2d 307, 310 

(Pa. 1959)) (emphasis in original). A competency hearing is centered on the 

inquiry into “the minimal capacity of the witness to communicate, to observe 
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an event and accurately recall that observation, and to understand the 

necessity to speak the truth.” Id. at 40. Credibility is not an issue at a 

competency hearing. Id.

In addressing the competency of A.H. to testify, the trial court 

provided the following analysis:

The [c]ourt conducted a competency hearing outside the 

jury’s presence on the first day of trial to assess the minor 

victim’s capacity to testify. As part of this hearing, the [c]ourt, 

as well as the assistant district attorney and defense counsel,

questioned the child. The child knew her date of birth, her grade 

in school at the time of the event, where the event had taken 

place, and what had been done to her. She knew the difference 

between things that were true and things that were made up, 

and the difference between the truth and a lie. She also 

understood what happens if one lies and that one should not lie. 

At the end of the hearing, the [c]ourt asked “are you going to be 

able to tell us what happened when you lived at your father’s 

house?” to which the child responded affirmatively.

In responding to defense counsel’s argument that the child 

was incompetent to testify because she was unable to provide an 

accurate time frame and failed to answer questions by saying “I 

don’t remember, I don’t want to remember. . . ,” the [c]ourt said

Well, my concern is that the child appears more to 

be unwilling to testify rather than unable to testify. I 

don’t see much of a problem with the time frame. At 

her age she indicated she may have been between 

four and six, but she was able to say she was in first 

grade, which was consistent with the time frame we 

have now. . . . I did observe her very carefully while 

she was on the witness stand. She was constantly 

wringing her hands, constantly making furtive 

glances over to [Appellant]. And when she would 

indicate that she forgot various things that occurred, 

quite candidly, I do not believe she forgot, I believe 

she simply did not want to testify about what had 

occurred. . . . She does understand the difference 

between telling the truth and telling a lie. She does 
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understand the difference between something that is 

make believe and something that occurred. The 

issue with respect to her ability to recall events that 

happened to her, again, I don’t think the record 

shows she is unable to do that, it is more she is 

unwilling to do that.

In addressing the child’s ability to answer questions, the 

[c]ourt further observed that when she was questioned by the 

assistant district attorney and defense counsel, who stood at the 

edge of the jury box so the child was not looking at [Appellant], 

she focused her attention on you, she was able to 

give much more responsive answers than when I 

spoke to her and she was constantly looking over at 

[Appellant]. And the more she would look over at 

him, the more she would wring her hands . . . I don’t 

have a great deal of concern with the matter you 

raised about her responses to the questions because 

when she kept saying I forgot or I don’t know I think 

she was just hoping that the whole thing would go 

away and she wouldn’t have to respond.

Ultimately, observing that there is a difference between 

being unwilling to testify and being incompetent to testify, the 

[c]ourt concluded that the question was not one of the child’s 

competence to testify but, because of either the subject matter 

or [Appellant’s] identity, her willingness to do so. Having 

questioned the child and having observed her as she was 

questioned by both the assistant district attorney and defense 

counsel, the [c]ourt did not abuse its discretion in determining 

that the child was competent to testify, or in overruling defense 

counsel’s objection to her competency.

Trial Court Opinion, 10/5/16, at 6-8 (internal citations omitted).

The trial court’s analysis is supported by the record. Based on the 

certified record, we agree with the trial court’s conclusion that A.H. was 

competent to testify and met the three prongs of the competency test for 

minors. Delbridge, 855 A.2d at 40. As the trial court aptly recognized, 
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A.H.’s hesitation to testify against her father, as reflected throughout the 

competency hearing, did not compel the conclusion that she was not 

competent to testify. Thus, the trial court did not abuse its discretion by 

concluding that A.H. was competent to testify. Appellant’s first claim fails.

In his second issue, Appellant asserts that the trial court erred in 

sustaining the Commonwealth’s objection and terminating counsel’s crossexamination of the prosecuting police officer. Appellant’s Brief at 23. 

Appellant asserts that defense counsel was attempting to develop during his 

examination of the officer that the victim’s recollection could be called into 

question due to her immaturity. Id. at 23. Appellant posits that while the 

trial court found A.H. competent to testify, it does not mean that her 

testimony had to be believed. Id. at 24. Appellant argues that counsel had 

a right to cross-examine the police officer, who observed various interviews 

of the victim, in order to develop the record concerning her immaturity. Id. 

at 24. Appellant maintains that by sustaining the Commonwealth’s 

objection, the trial court unfairly limited Appellant’s right to cross-examine 

and impeach and thereby committed a manifest abuse of discretion. Id. at 

24. 

“The scope of cross-examination is a matter left to the sound 

discretion of the trial court, and the trial court’s rulings will not be disturbed 

absent an abuse of discretion.” Commonwealth v. Boczkowski, 846 A.2d 

75, 96 (Pa. 2004). Additionally, “[i]t is within the ordinary capacity of a jury 
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to assess whether a particular witness is lying, and resolving questions of a 

witness’s credibility is a function reserved exclusively for the jury.” 

Commonwealth v. Boyd, 672 A.2d 810, 812 (Pa. Super. 1996). 

The veracity of a particular witness is a question which 

must be answered in reliance on the ordinary experiences of life, 

common knowledge of the natural tendencies of human nature, 

and observations of the character and demeanor of the witness. 

As the phenomenon of lying is within the ordinary capacity of 

jurors to assess, the question of a witness’s credibility is 

reserved exclusively for the jury. 

Commonwealth v. Alicia, 92 A.3d 753, 761 (Pa. 2014) (quoting 

Commonwealth v. Davis, 541 A.2d 315, 317 (Pa. 1988). Moreover, our 

Supreme Court explained that: “[w]e have consistently maintained that a 

lay jury is capable of determining whether a witness is lying, and thus expert 

testimony is not permissible as to the question of witness credibility.” 

Alicia, 92 A.3d at 760. “Under Pennsylvania law, only evidence of a general 

reputation for truthfulness in the community is admissible as character 

testimony. Thus, an individual’s opinion as to a witness’s ‘character for 

truthfulness,’ no matter how well the individual knows the witness, is never 

admissible in this Commonwealth.” Commonwealth v. Smith, 567 A.2d 

1080, 1082 (Pa. Super. 1989) (internal citations omitted). 

In Smith, the Commonwealth presented at trial the testimony of a 

family therapist regarding the truth-telling ability of the seven-year-old 

victim of indecent exposure and corruption of minors. Smith, 567 A.2d at 

1081. This Court found that the appellant’s counsel erred in failing to object 
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to the introduction of this testimony. Id. at 1082. This Court concluded 

that “[b]y testifying as to the child’s character for telling the truth, the 

Commonwealth witness usurped the credibility-determining function of the 

jury. This infringement upon the jury’s sacred domain prejudiced Smith 

because the credibility of the alleged victim was the linchpin of the 

Commonwealth’s case.” Id. at 1083. In support of this conclusion, we 

explained:

We find it unwise to create an exception to the credibilitydetermining function of the jury in a case in which an alleged 

child/victim testifies. We do not dispute that an alleged 

child/victim of sexual abuse should have the opportunity to take 

the witness stand and tell his or her story. The competency 

considerations for child witnesses, repeatedly articulated in 

Pennsylvania, are designed to allow a child witness to testify 

merely if the child has the capacity to have observed the event 

giving rise to the litigation with a substantial degree of accuracy, 

can remember the event giving rise to the litigation, has the 

ability to understand questions and communicate answers, and 

has a consciousness of the duty to speak the truth. 

Furthermore, child witnesses, like all witnesses, are presumed 

competent to testify. From this testimony, the jury, doubtlessly 

taking into consideration the youth of the witness, can make a 

determination as to the veracity of the testimony and the 

credibility of the witness. We find improper, on the other hand, a 

situation in which an expert witness, or any witness for that 

matter, takes the witness stand and under the guise of 

“rehabilitation” proceeds to testify as to the credibility of the 

child/witness. To allow such testimony is to permit the unlawful 

usurpation of the credibility-finding function of the jury. This 

strikes at the heart of our system of justice.

Id. The panel further noted that “[w]e would have reached our conclusion 

at bar if any Commonwealth witness presumed to give his or her personal 

opinion as to the veracity of another witness[.]” Id.
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In this case, defense counsel questioned the investigating officer, 

Lancaster City Detective Gareth Lowe, as to his opinion on the recollection of 

the minor victim. The following exchange occurred between defense counsel 

and Detective Lowe during cross-examination:

[Defense Counsel]: The child also did state that she was 

about four or five years old as well [at 

the time of the abuse]?

[Detective Lowe]: She is nine years old when she took the 

stand here, Counselor.

[Defense Counsel]: Right.

[Detective Lowe]: She is nine years old and I’m sure that 

her recollection of how old she was when 

her dad was doing these things to her, 

probably, she doesn’t remember how old 

she was.

[Defense Counsel]: But her recollection can be in question 

because of her age?

N.T., 1/26/17, at 205. The prosecutor objected, stating: “Objection, Your 

Honor. Her testimony speaks for itself. She told the jury what grade she 

was in, her age, that’s for the jury to consider.” Id. at 205. The trial court 

sustained the objection and issued the following curative instruction:

Ladies and gentlemen, as I told you before and I will tell you 

again in my final instructions, you are free to believe all, part, or 

none of the testimony of any witness. Your opinion is the only 

one that counts in this case. You will have to evaluate all of the 

testimony of the witnesses, using your common sense and 

human experience. You have to evaluate the child’s testimony, 

bearing in mind that she is nine years old at the time she got on 

the stand, she is talking about events that happened in the past. 

If you find her recitation is not reliable for any reason then you 

are free to disregard her testimony in its entirety, if you wish. 
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On the other hand, if you find that her testimony is reliable, then 

you are free to consider it. That is entirely up to you. The 

lawyers are not here to tell you what to think or what to believe, 

that is your responsibility and yours alone. I am not here to tell 

you what to think or what to do, again, it is your responsibility 

and yours alone. 

N.T., 1/26/17, at 205-206. 

The sought-after testimony from Detective Lowe constituted an 

impermissible attempt to usurp the jury’s role as the exclusive arbiter of 

credibility. Thus, the trial court properly sustained the Commonwealth’s 

objection and prohibited this line of questioning of Detective Lowe on crossexamination. Accordingly, the trial court did not abuse its discretion in 

sustaining this objection, thereby limiting the cross-examination of Detective 

Lowe. Appellant’s second issue lacks merit.

In his final issue, Appellant argues that the trial court committed an 

abuse of discretion when it imposed an aggregate sentence of not less than 

twenty-two nor more than fifty years, which was manifestly excessive and 

unduly harsh. Appellant’s Brief at 24. Appellant asserts that he has a 

documented history of mental health issues, was the product of an abusive 

childhood, and had long term problems with drugs and alcohol. Id. at 26. 

Appellant further argues that “[d]espite the fact that [Appellant] only had 

one prior felony conviction, the [c]ourt saw fit to impose a sentence of not 

less than 22 years incarceration.” Id. Appellant maintains that the 

sentence violated the Sentencing Code’s language set forth in 42 Pa.C.S. § 
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9721(b) because it did not take into account Appellant’s rehabilitative needs. 

Id. at 27. Appellant contends that his sentence should be reversed. Id.

Appellant’s issue challenges the discretionary aspects of his sentence. 

We note that “[t]he right to appellate review of the discretionary aspects of 

a sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d 127, 132 

(Pa. Super. 2014). Rather, where an appellant challenges the discretionary 

aspects of a sentence, the appeal should be considered a petition for 

allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. 

Super. 2007).

As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa. 

Super. 2010):

An appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying a 

four-part test:

[W]e conduct a four-part analysis to 

determine: (1) whether appellant has filed a timely 

notice of appeal, see Pa.R.A.P. 902 and 903; (2) 

whether the issue was properly preserved at 

sentencing or in a motion to reconsider and modify 

sentence, see Pa.R.Crim.P. [708]; (3) whether 

appellant’s brief has a fatal defect, Pa.R.A.P. 

2119(f); and (4) whether there is a substantial 

question that the sentence appealed from is not 

appropriate under the Sentencing Code, 42 Pa.C.S.A. 

§ 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. 

Super. 2006)). The determination of whether there is a substantial question 

is made on a case-by-case basis, and this Court will grant the appeal only 
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when the appellant advances a colorable argument that the sentencing 

judge’s actions were either: (1) inconsistent with a specific provision of the 

Sentencing Code; or (2) contrary to the fundamental norms which underlie 

the sentencing process. Commonwealth v. Sierra, 752 A.2d 910, 912–

913 (Pa. Super. 2000).

Herein, the first three requirements of the four-part test are met: 

Appellant brought a timely appeal, raised the challenges in a post-sentence 

motion, and included in his appellate brief the necessary separate concise 

statement of the reasons relied upon for allowance of appeal pursuant to 

Pa.R.A.P. 2119(f). Therefore, we next determine whether Appellant raises a 

substantial question requiring us to review the discretionary aspects of the 

sentence imposed by the trial court.

“We examine an appellant’s Rule 2119(f) statement to determine 

whether a substantial question exists.” Commonwealth v. Ahmad, 961 

A.2d 884, 886-887 (Pa. Super. 2008). In his Pa.R.A.P. 2119(f) statement, 

Appellant argues that the trial court’s sentence is manifestly excessive and 

unduly harsh given Appellant’s background and the circumstances of the 

offense. Appellant’s Brief at 19-20. Appellant contends that the trial court 

focused exclusively on the serious nature of the offense and failed to 

consider the mitigating factors, specifically Appellant’s rehabilitative needs. 

Id. at 20. Appellant also argues that the imposition of consecutive 

sentences resulting in the aggregate sentence of twenty-two to fifty years is 
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unduly harsh and manifestly excessive. Id. This Court has held that a 

challenge to the imposition of consecutive sentences as unduly excessive, 

together with a claim that the trial court failed to consider the defendant’s 

rehabilitative needs upon fashioning its sentence, presents a substantial 

question. Commonwealth v. Bonner, 135 A.3d 592, 604 (Pa. Super. 

2016). Because Appellant has presented a substantial question, we proceed 

with our analysis. 

Sentencing is a matter vested in the sound discretion of the sentencing 

judge, and a sentence will not be disturbed on appeal absent a manifest 

abuse of discretion. Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa. 

Super. 2006). In this context, an abuse of discretion is not shown merely by 

an error in judgment. Id. Rather, the appellant must establish, by 

reference to the record, that the sentencing court ignored or misapplied the 

law, exercised its judgment for reasons of partiality, prejudice, bias, or ill 

will, or arrived at a manifestly unreasonable decision. Id.

When imposing a sentence, the sentencing court must 

consider the factors set out in 42 Pa.C.S. § 9721(b), that is, the 

protection of the public, gravity of offense in relation to impact 

on victim and community, and rehabilitative needs of defendant, 

and it must impose an individualized sentence. The sentence 

should be based on the minimum confinement consistent with 

the gravity of the offense, the need for public protection, and the 

defendant’s needs for rehabilitation.

Id. Guided by these standards, we must determine whether the court 

abused its discretion by imposing a “manifestly excessive” sentence that 

constitutes “too severe a punishment.” Id. Moreover, this Court has 
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explained that when the “sentencing court had the benefit of a presentence 

investigation report (‘PSI’), we can assume the sentencing court ‘was aware 

of relevant information regarding defendant’s character and weighed those 

considerations along with mitigating statutory factors.’” Moury, 992 A.2d at 

171. 

In addressing this claim, the trial court explained its reasoning in 

imposing Appellant’s sentence as follows:

Although the sentences imposed were not in the 

aggravated range, the [c]ourt stated the reasons for its sentence 

on the record and in [Appellant’s] presence. The [c]ourt also 

identified the factors and materials considered in determining 

that sentence. In particular, the [c]ourt considered the 

presentence report noting [Appellant’s] background, including 

his age, family background and upbringing, level of education, 

prior criminal record, history of substance abuse and substance 

abuse treatment, history of mental health issues and mental 

health treatment, and his employment history. The [c]ourt also 

considered the Sentencing Code and the sentencing guidelines, 

the circumstances of the offenses, the need to protect the public 

from such criminal conduct and [Appellant’s] rehabilitative 

needs. While [Appellant] offered no comment, counsel spoke on 

his behalf and the [c]ourt took that into account as well as the 

position of the Commonwealth. 

The [c]ourt noted that [Appellant] was not amenable to 

supervision and had failed to comply with the requirements 

imposed as demonstrated by his five probation and parole 

violations, and that [Appellant] had not seriously pursued 

treatment for his substance abuse or mental health issues. The 

[c]ourt also considered an aggravating factor that [Appellant] 

had “violated the duty of care, protection and support” owed to 

the child victim.

These were extremely serious offenses perpetrated on a 

defenseless child over a period of time. It is evident from the 

record that the [c]ourt adequately considered all relevant 
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information in fashioning [Appellant’s] sentence. Therefore, his 

claims that the court abused its discretion are without merit.

Trial Court Opinion, 10/5/16, at 4-5 (internal citations omitted). 

As is reflected by the record, the trial court considered the protection 

of the public, the gravity of the offense in relation to its impact on the victim 

and community, and the rehabilitative needs of Appellant in sentencing 

Appellant. Fullin, 892 A.2d at 847. Accordingly, we conclude that the trial 

court did not abuse its discretion by imposing a manifestly excessive or 

unduly harsh sentence. 

Moreover, the trial court had the benefit of a PSI. Thus, we can 

assume the sentencing court was aware of relevant information regarding 

Appellant’s character and weighed those considerations along with mitigating 

statutory factors. Moury, 992 A.2d at 171; see also Commonwealth v. 

Fowler, 893 A.2d 758, 766 (Pa. Super. 2005) (“Since the sentencing court 

had and considered a [PSI], this fact alone was adequate to support the 

sentence, and due to the court’s explicit reliance on that report, we are 

required to presume that the court properly weighed the mitigating factors 

present in the case.”). Accordingly, Appellant’s argument that the trial court 

failed to consider mitigating evidence, specifically his need for rehabilitation, 

fails. See Moury, 992 A.2d at 171; Fowler, 893 A.2d at 766.
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Judgment of sentence affirmed. 

Judge Strassburger joins the Memorandum.

President Judge Gantman concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/12/2017