J-S27014-17

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*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

OSCAR MARTINEZ

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1735 EDA 2016

Appeal from the Judgment of Sentence October 26, 2012

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0008142-2010,

CP-51-CR-0008143-2010

BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED MAY 24, 2017

Appellant, Oscar Martinez, appeals nunc pro tunc from the judgment of 

sentence entered in the Philadelphia County Court of Common Pleas, 

following his bench trial convictions for two counts each of rape and 

corruption of minors.1 We affirm. 

The trial court opinion accurately set forth the relevant facts of this 

case as follows: 

The Commonwealth began its case by submitting a written 

stipulation concerning police and medical records and then 

called its first witness, the complainant at [docket CP-51-

CR-0008143, J.O.], age fourteen at the time of trial, who 

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1 18 Pa.C.S.A. §§ 3121(a)(1); 6301(a)(1)(i), respectively. 
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testified as follows:

[J.O.] identified [Appellant] as her grandmother’s husband 

whom she had known longer than she could remember and 

with whom she had a grandfather-granddaughter 

relationship. She would see him often at her 

grandmother’s house and her home in Philadelphia where 

she lived with her stepfather, mother and sister. Her 

mother worked at a store down the block from their home 

and her stepfather worked in security on the first floor of 

their building. There were often times when [Appellant] 

would come visit her when she was alone while her 

parents were at work and her sister would cook and take 

dinner to them when they were on their...breaks. On one 

such occasion, three years prior to trial when [J.O.] was 

eleven, [Appellant] said to her that they were going to play 

a game. Thinking he meant a board game, she went into 

her room to get one and he followed her, closed the door 

and said they were going to play a different type of game. 

He put her on the floor, took off her clothes and engaged 

her in intercourse. After that, her back started to hurt and 

she experienced a certain type of odor coming from her 

vagina. She told her mother about those complaints[,] 

who took [J.O.] to a regular doctor who conducted a urine 

test and said it was just a urinary tract infection. About a 

year or so later, after her family had moved to New 

Jersey[2]and [J.O.] was still experiencing the odor, [J.O.’s] 

mother took her and her sister, [S.O.], to a hospital in 

New Jersey where [J.O.] was given another urine test and 

an OB/GYN exam and was told she had a “STD called trich” 

(a Sexually Transmitted Disease, Trichomoniasis, often 

called “trich”), for which she was given antibiotics. [J.O.] 

then told the doctor, who told [J.O.’s] mother, about the 

incident with [Appellant]. 

On cross-examination, [J.O.] said she didn’t tell anyone 

about the incident because she was scared and didn’t know 

if anyone would believe her because she was only 11 and 

[Appellant] was a grown man. After cross-examination, 

the Commonwealth entered into evidence by stipulation 

____________________________________________

2

J.O.’s family moved to New Jersey in July 2009. 
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the medical records [of J.O.] from “Atlantic Care,” the 

hospital to which she referred, and then called [J.O.’s] 

sister, the complainant at [docket CP-51-CR-0008142, 

S.O.], age eighteen at [the] time of trial. 

[S.O.] also identified [Appellant] as her grandmother’s 

husband whom she had known longer than she could 

remember and with whom she had a grandfathergranddaughter relationship. Whenever her parents were 

working[,] she and her sister would take turns bringing 

them dinner, which would take about twenty-five to thirty 

minutes, and [Appellant] would come visit them about 

twice a week. One time, when she was about eleven or 

twelve and her sister took her stepfather dinner, 

[Appellant] told [S.O.] to go into her bedroom, walked in 

behind her, closed the door, told her not to say anything, 

took off her clothes and his pants and had intercourse with 

her. When asked whether this happened more than once, 

[S.O.] said [Appellant] would come over at least twice a 

week and it would happen every time, continuing from the 

time she was eleven, the last time when she was a 

freshman in high school in 2008-2009. It happened twice 

while she and [Appellant] were watching television in her 

grandmother’s bedroom at her [grandmother’s] and 

[Appellant’s] house, where she and her sister also had 

bedrooms, always when they were alone. In May of 2010, 

[S.O.] went to the hospital in New Jersey with her mother 

and her sister due to her having back and cramping pains 

and told the doctor there about the incidents with 

[Appellant] and also informed her mother. 

On cross-examination, defense counsel had [S.O.] agree 

that they found nothing wrong with her at the hospital,[3]

and, in Family Court, [S.O.] testified that [Appellant] had 

intercourse with her three times a week from when she 

was eleven [until] when she was fifteen, which came to 

627 times, but, previous to that had told the police that it 

only happened twelve times, which [S.O.] attributed to 

increasing memories over time, and to her perceived 

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3 The hospital doctors attributed S.O.’s back and cramping pains to a pulled 

muscle. 
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differences between the exact questions that the police 

and the prosecutor had asked her; counsel also noted that, 

while [Appellant] was a much larger person than [S.O.] 

and [S.O.] described him as having laid right on top of her 

with his arms on the floor, he did not crush her. After redirect and re-cross, the prosecutor entered the following 

into evidence by stipulation:

Cindy Delgado would testify [t]hat she’s a 

pediatrician who works at a Child Abuse Research 

Education and Service Institute, also known as 

CARES.... That on June 24th of 2010, she examined 

[S.O.] for a diagnosis and treatment of any residual 

findings of sexual abuse[.]

[T]hat [S.O.] arrived at CARES with her mother, 

father and sister, [J.O.]

Prior to the examination, Dr. Delgado spoke with 

[S.O.] [S.O.] told the doctor that she never had 

consensual sex and does not have a boyfriend. She 

also never had vaginal discharge, odor or bleeding or 

a history of accidental genital trauma. [S.O.] further 

stated that she was almost 12 years old when 

[Appellant] began abusing her. [S.O.] said that she 

thought it was not right when he started touching 

her[.] [S.O.] said [Appellant] touched her at her 

grandmother’s house and that he took off [her] 

clothes, laid [her] on the ground, climbed on top of 

[her], spread [her] legs and put his penis in [her] 

vagina. When he was finished, [S.O.] went into the 

bathroom and peed, it hurt and blood was in the 

toilet. [Appellant], she said, told her she could not 

tell anybody because nobody would believe her. 

[S.O.] told Dr. Delgado that it happened a couple of 

times between the ages of 11 and 15. [S.O.] also 

said that two years ago it happened at her 

stepfather’s [home]. 

The examination revealed that [S.O.] has an absence 

of hymenal tissue at the six o’clock position 

indicating a well-healed transection. In light of no 

history of describing accidental blunt genital trauma, 

the only explanation for this transection is the forced 
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sexual intercourse [S.O.] described. 

The prosecutor then called [Victims’] mother, [C.S.], who 

confirmed everything in which her daughters described her 

being involved, including the visit to the hospital in Atlantic 

City [in May 2010] where a doctor there told her that 

[J.O.] had an infection that was transmitted by sex, for 

which they treated her and, after some follow-up care, was 

completely cleared up. On cross-examination, [defense] 

counsel took great pains pointing out that, at the hospital, 

she was given discharge instructions which said to call in 

three days for lab results but she had said that she and 

her daughters received the test results that same day. 

[C.S.] replied that she did not recall those instructions, 

reiterated her recollection of getting the results at the 

hospital, and pointed out that they (probably meaning only 

[J.O.]) also were prescribed their antibiotics that same 

day. The prosecutor moved the state’s exhibits into 

evidence, C-1 being the Atlantic City hospital records for 

[J.O.], C-2 the [Dr.] Delgado stipulation and C-3[,] a 

medical report that went with the latter, and rested.

The defense called [M.S.P.], who characterized herself as 

[Appellant’s] lover, was sexually active with him from 2006 

up until 2009, would frequently get tested for STDs, 

including trich, the last time having been June 30, 2010, 

and never tested positive. Defense counsel submitted by 

stipulation[:] “That there were three character 

witnesses...[who would testify] that [Appellant] is a person 

of good character of peacefulness, honesty, law-abiding.” 

... The defense then moved into evidence D-2, the hospital 

records which the prosecutor had moved in as C-1, but 

which included the discharge instructions about which he 

had questioned [Victims’] mother containing the 

recommendation of a follow-up call that were not included 

with the latter, to which there was no objection, and D-3, 

which counsel characterized as [several learned treatises 

on trich and the follow-up tests associated with diagnosis 

of trich, which the court admitted over the 

Commonwealth’s objection].

The defense then rested, and, after announcing its verdict, 

the court explained[:]
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The existence or nonexistence of the sexually 

transmitted disease is not a dispositive factor in this 

case. The primary factor as in all sexual assault 

cases has to do with the [c]ourt’s analysis of 

credibility of the Commonwealth witnesses which 

[the court] found not to be wanting. The verdict 

would have been the same even if there [were] no 

scientific evidence.

(Trial Court Opinion, filed July 29, 2016, at 2-6) (internal citations omitted). 

Following trial, the court convicted Appellant of two counts each of rape and 

corruption of minors. 

On October 26, 2012, the court sentenced Appellant at each docket to 

concurrent terms of ten to twenty years’ imprisonment for rape, plus a 

consecutive term of two and one-half to five years’ imprisonment for 

corruption of minors. Appellant subsequently filed post-sentence motions, 

which were denied by operation of law, but he did not file a direct appeal.

On July 22, 2013, Appellant timely filed a pro se PCRA petition. The 

court appointed counsel, who filed an amended PCRA petition on June 27, 

2014, requesting reinstatement of Appellant’s post-sentence and direct 

appeal rights nunc pro tunc. Appellant filed a second amended PCRA 

petition on February 22, 2016, withdrawing his request to file post-sentence 

motions nunc pro tunc. On May 2, 2016, the PCRA court reinstated 

Appellant’s direct appeal rights nunc pro tunc. Appellant timely filed a nunc 

pro tunc notice of appeal on June 1, 2016. On June 21, 2016, the court 

ordered Appellant to file a concise statement of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied on July 12, 
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2016.

Appellant raises the following issue for our review:

WAS THE EVIDENCE AT TRIAL INSUFFICIENT TO SUSTAIN 

THE CONVICTIONS AS THEY WERE SO VAGUE AS TO 

WHEN THE ALLEGED INCIDENTS OCCURRED AND 

PREVENTED APPELLANT FROM MOUNTING A DEFENSE?

(Appellant’s Brief at 7).

Appellant argues Victims failed to provide specific dates and times 

regarding when the alleged assault(s) took place. Appellant asserts Victims 

isolated their allegations to occurring “around” a specific year. Appellant 

maintains S.O. initially told police Appellant assaulted her on twelve 

occasions. Appellant claims S.O. later stated Appellant abused her three 

times each week for four years, which totals over 600 assaults. Appellant 

contends Victims’ lack of precise dates for the alleged assault(s) and varying 

testimony deprived him of an opportunity to defend adequately against their 

allegations, particularly precluding Appellant from supplying an alibi defense. 

Appellant concludes the evidence was insufficient to sustain the verdicts, and 

this Court must reverse his convictions. We disagree. 

When examining a challenge to the sufficiency of evidence:

The standard we apply in reviewing the sufficiency of the 

evidence is whether viewing all the evidence admitted at 

trial in the light most favorable to the verdict winner, there 

is sufficient evidence to enable the fact-finder to find every 

element of the crime beyond a reasonable doubt. In 

applying the above test, we may not weigh the evidence 

and substitute our judgment for the fact-finder. In 

addition, we note that the facts and circumstances 

established by the Commonwealth need not preclude every 
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possibility of innocence. Any doubts regarding a 

defendant’s guilt may be resolved by the fact-finder 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. The Commonwealth may sustain 

its burden of proving every element of the crime beyond a 

reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire 

record must be evaluated and all evidence actually 

received must be considered. Finally, the trier of fact 

while passing upon the credibility of witnesses and the 

weight of the evidence produced, is free to believe all, part 

or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal 

denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v. 

Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)). 

The Crimes Code defines the offenses of rape and corruption of 

minors, in relevant part, as follows:

§ 3121. Rape

(a) Offense defined.—A person commits a felony of 

the first degree when the person engages in sexual 

intercourse with a complainant:

(1) By forcible compulsion.

18 Pa.C.S.A. § 3121(a)(1).

§ 6301. Corruption of minors

(a) Offense defined.—

(1)(i) Except as provided in subparagraph (ii), whoever, 

being of the age of 18 years and upwards, by any act 

corrupts or tends to corrupt the morals of any minor less 

than 18 years of age, or who aids, abets, entices or 

encourages any such minor in the commission of any 

crime, or who knowingly assists or encourages such minor 
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in violating his or her parole or any order of court, commits 

a misdemeanor of the first degree.

18 Pa.C.S.A. § 6301(a)(1)(i). 

As a general rule, the Commonwealth must fix with reasonable 

certainty the date when an alleged offense occurred. Commonwealth v. 

Devlin, 460 Pa. 508, 333 A.2d 888 (1975). Nevertheless, there is no “exact 

degree of specificity in the proof of the date of a crime which will be required 

or the amount of latitude which will be acceptable.” Id. at 517, 333 A.2d at 

892. “Certainly the Commonwealth need not always prove a single specific 

date of the crime. Any leeway permissible would vary with the nature of the 

crime and the age and condition of the victim, balanced against the rights of 

the accused.” Id. (internal citation and footnote omitted). “A Devlin claim 

is a form of motion in arrest of judgment...; if the claim is meritorious, the 

proper remedy is to vacate judgment of sentence and discharge the 

defendant.” Commonwealth v. Groff, 548 A.2d 1237, 1240-41 (Pa.Super. 

1988). “[F]or purposes of a Devlin claim, the Commonwealth must be 

allowed a reasonable measure of flexibility when faced with the special 

difficulties involved in ascertaining the date of an assault upon a young 

child.” Id. at 1241 (holding Commonwealth established date of defendant’s 

offenses with sufficient particularity where child victim testified she was 

molested while living with defendant and was wearing bathing suit when he 

lured her into his bedroom; Commonwealth presented testimony from 

victim’s grandmother and stepmother which helped to narrow timeframe of 
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abuse to summer of 1985, based on victim’s behavior during that time; in 

light of nature of crime and age and condition of victim, Commonwealth’s 

proof as to time of criminal acts was constitutionally adequate). 

In cases involving a continuous course of conduct, the Commonwealth 

must be afforded even broader latitude in establishing the dates of the 

assaults. Id. See also Commonwealth v. Brooks, 7 A.3d 852 (Pa.Super. 

2010), appeal denied, 610 Pa. 614, 21 A.3d 1189 (2011) (explaining 

Commonwealth must be afforded broad latitude when attempting to fix date 

of offenses which involve continuous course of criminal conduct, particularly 

in cases involving sexual offenses against child victim; evidence was 

sufficient to sustain defendant’s sex-offense convictions where one victim 

testified that defendant forced him to perform oral and anal sex every day, 

and another victim testified that defendant forced her to perform oral sex 

more than ten times and pinpointed some assaults to when it was warm 

outside and she was wearing shorts); Commonwealth v. G.D.M., Sr., 926 

A.2d 984 (Pa.Super. 2007), appeal denied, 596 Pa. 715, 944 A.2d 756 

(2008) (holding evidence was sufficient to sustain defendant’s convictions 

for indecent assault, endangering welfare of children, and corruption of 

minors, in connection with defendant’s ongoing sex abuse of his six-year-old 

son; victim identified three different occasions on which he was abused 

between September 1997 and March 1998; victim said he remembered 

when abuse began because it was contemporaneous with his start of 
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kindergarten, and said abuse ended when defendant was arrested; victim’s 

testimony satisfied due process concerns under Devlin; six-year-old child 

cannot be expected to remember each and every date he was victimized, 

especially where those events are numerous and occur over extended period 

of time; to require young children to provide such detail would give child 

predators free rein); Commonwealth v. Robinson, 462 A.2d 840 

(Pa.Super. 1983) (holding evidence was sufficient to support defendant’s 

convictions for statutory rape and corruption of minors where victim testified 

that sexual acts had occurred on weekly basis from January 1978 until 

September 1980; victim made entries in diary on numerous dates during 

1978 and 1979, and had noted in diary three instances of defendant’s 

“treatments” of her; victim testified defendant’s “treatments” occurred about 

three times each week between 1978-1980; victim’s testimony was 

sufficient to establish with reasonable certainty dates of assaults); 

Commonwealth v. Niemetz, 422 A.2d 1369 (Pa.Super. 1980) (holding 

evidence was sufficient to support defendant’s convictions for rape, 

corruption of minors, and related offenses involving abuse of defendant’s 

minor step-daughter; notwithstanding victim’s inability to pinpoint specific 

dates, victim testified about defendant’s repeated assaults throughout her 

childhood beginning when she was nine years old until she was about 

seventeen; distinguishing Devlin, which involved one incident of assault, 

with cases involving numerous assaults over time; cases involving one 
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incident of sexual assault are more susceptible to fixing date of offense with 

“reasonable certainty” than those cases involving numerous abuses over 

time). 

Instantly, J.O. testified at trial, inter alia, that she has known Appellant 

for as long as she can remember and shared a granddaughter-grandfather 

relationship with Appellant. Appellant often came to her house while her 

parents were at work. J.O.’s parents worked close to her house, so J.O. and 

S.O. would take turns bringing their parents dinner during their respective 

breaks. On one occasion, when J.O. was eleven years old,4 Appellant was at 

her house while S.O. was delivering dinner to their parents. Appellant told 

J.O. they were going to play a game. J.O. went into her room expecting to 

play a board game. Appellant then told J.O. that they were going to play a 

different type of game. Appellant closed J.O.’s bedroom door, took off J.O.’s 

clothes, made her lay on the floor, and had sexual intercourse with her. 

Following the assault, J.O. said her back started to hurt and she experienced 

an odor coming from her vagina. J.O. told her mother about her ailments 

and J.O.’s mother took J.O. to a doctor, who diagnosed J.O. with a urinary 

tract infection. About a year later, after J.O.’s family had moved to New 

Jersey, J.O. still had the vaginal odor, so her mother took her to the hospital 

where a urine screen and gynecological exam were performed. J.O.’s test 

____________________________________________

4

J.O. was born in April 1998, so the incident occurred around 2009. 
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results confirmed she had a sexually transmitted disease called 

Trichomoniasis, for which she was given antibiotics. At that point, J.O. 

disclosed Appellant’s abuse to the doctor, who informed J.O.’s mother about 

the abuse. (See N.T. Trial, 5/11/12, 14-35.) 

S.O. testified at trial, inter alia, that she has also known Appellant for 

as long as she can remember and that she enjoyed a granddaughtergrandfather relationship with him. S.O. echoed J.O.’s testimony that they 

often took turns preparing and delivering dinner to their parents during their 

employment breaks. S.O. said Appellant visited her home about twice each 

week. One time when S.O. was about eleven or twelve years old,5 Appellant 

told her to go into her bedroom, walked in behind her, closed the door, took 

off S.O.’s clothes, and had sexual intercourse with her. S.O. testified the 

abuse continued every time Appellant visited their home until she was a 

freshman in high school in 2008-2009. S.O. also said the abuse occurred 

twice at Appellant and her grandmother’s home. S.O. described those 

assaults taking place while S.O. and Appellant were watching television in 

Appellant and her grandmother’s bedroom. S.O. stated that on the date her 

mother took J.O. to the hospital in New Jersey for treatment, S.O. was also 

having back pain and cramps. After J.O. disclosed Appellant’s abuse, S.O. 

informed the doctor and her mother that Appellant had abused her as well. 

____________________________________________

5 S.O. was born in April 1994, so the first incident of abuse occurred around 

2005 or 2006. 
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(See id. at 36-76.)

Victims’ mother also testified at trial and corroborated her daughters’ 

accounts of bringing her and her husband dinner almost every night that 

they worked. Victims’ mother said Appellant would often be alone with her 

daughters, especially when she and her husband were working. Victims’ 

mother recalled J.O. complaining about pain when she urinated and a 

vaginal odor. Victims’ mother described taking J.O. to a doctor, who 

diagnosed J.O. with a urinary tract infection. After her family moved to New 

Jersey, J.O. was still complaining about the vaginal odor, so, around May 

2010, Victims’ mother brought J.O. and S.O. to the hospital. The doctor 

performed some tests and diagnosed J.O. with a sexually transmitted 

disease. During that hospital visit, J.O. and S.O. disclosed Appellant’s 

abuse. (Id. at 80-95.) 

The Commonwealth also presented, by way of stipulation, evidence of 

J.O. and S.O.’s medical records, which corroborated their accounts of 

seeking medical treatment; and testimony from Dr. Cindy Delgado, 

describing her examination of S.O. on June 24, 2010, and corroborating 

S.O.’s description of the forced sexual intercourse. (Id. at 3-4; 76-78.) 

Under these circumstances, the evidence was sufficient to support 

Appellant’s convictions. J.O. testified that the abuse occurred in her 

Philadelphia home when she was eleven years old, which would have been 

sometime between April and July 2009, before her family moved to New 
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Jersey. J.O.’s medical records and testimony from J.O.’s mother confirmed 

J.O. sought treatment after the move. S.O. testified that Appellant began 

abusing her when she was eleven or twelve years old (around 2005 or 2006) 

and that the abuse continued until she was a freshman in high school in 

2008-2009. S.O. said the abuse occurred each time Appellant visited their 

home throughout those years, which was about two nights per week. S.O. 

cannot be expected to recall the dates of each of those regular and frequent 

assaults.6 See G.D.M., Sr., supra. Therefore, the Commonwealth 

established with reasonable certainty the dates of the assaults to sustain 

Appellant’s convictions for rape and corruption of minors.7 See id. See 

also Brooks, supra; Groff, supra; Robinson, supra; Niemetz, supra. 

Accordingly, we affirm.

Judgment of sentence affirmed. 

____________________________________________

6 The trial court, as fact-finder, was free to resolve any inconsistencies in 

S.O.’s testimony regarding the number of assaults. See generally 

Commonwealth v. Horne, 89 A.3d 277 (Pa.Super. 2014), appeal denied, 

628 Pa. 620, 102 A.3d 984 (2014) (explaining it is function of fact-finder to 

resolve any inconsistencies in testimony and to evaluate credibility of 

witnesses). 

7

The Commonwealth has filed a motion to seal the record because the trial 

court refers to Victims by name. This appellate Court’s redaction policies, in 

addition to the statutes the Commonwealth cites in its motion, provide a 

framework for protecting the privacy of victims in sexual assault cases. 

Therefore, we deny the Commonwealth’s motion to seal. Nevertheless, we 

strongly encourage trial courts to substitute initials for the names of sexual 

assault victims as an added layer of privacy protection. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/24/2017