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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

JEREMY ELI BACA, :

:

Apellant :

: No. 410 MDA 2016

Appeal from the Judgment of Sentence December 21, 2015

In the Court of Common Pleas of Berks County 

Criminal Division at No(s): CP-06-CR-0000423-2015

 

BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.: FILED DECEMBER 27, 2016

Appellant, Jeremy Eli Baca, appeals from the Judgment of Sentence 

entered December 21, 2015, in the Court of Common Pleas of Berks County. 

After careful review, we conclude that (i) Appellant’s conviction for Indecent 

Assault was properly graded as a third-degree felony (“F-3 Indecent 

Assault”) where he pressed his penis against the victim’s mouth and thighs; 

(ii) the jury’s verdict was not against the weight of the evidence; and (iii) 

the trial court did not abuse its discretion when it sentenced Appellant to 

consecutive sentences in the aggravated range. Accordingly, we affirm.

 

* Retired Senior Judge assigned to the Superior Court.
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We summarize the relevant factual and procedural history as follows. 

In 2010, Appellant, along with his wife and two children, moved into the 

basement of his sister-in-law’s Berks County home. Appellant’s sister-in-law 

lived on the first and second floor along with her then-husband and their 

children, including the victim in this case, A.M.

The basement consisted, in part, of a bedroom and a living area with a 

couch, a mattress, and a TV. Appellant would sleep in the living area, and 

his wife would sleep in the bedroom. Appellant’s children usually slept in the 

living area with Appellant. A.M. was close with her cousin, Appellant’s son, 

and would often go to the basement to play with her cousin. At times, she 

would also sleep downstairs with her cousin in the living area. 

When A.M. was approximately eight years old, she spent the night in 

the basement with her cousin and his family. Her cousin was an early riser, 

and when she awoke, he was already upstairs in the main part of the house. 

Appellant, however, was still in the living area with A.M., and he called her 

down to the mattress where he was lying. Appellant then wrapped his arms 

around A.M., took his penis out of his shorts, and began pushing A.M.’s head 

down towards his genitals. Appellant attempted to force his penis into 

A.M.’s mouth, pushing her mouth and lips against his penis in the process. 

Appellant also rubbed his penis and fingers on A.M.’s thighs and tried to 

force his penis down A.M.’s shorts. 
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Appellant repeated this behavior on two to four subsequent occasions. 

Each time, he would rub his penis and fingers on A.M.’s thighs. He also 

attempted to force A.M. to touch his penis by prying her fist open. 

A.M. did not immediately report Appellant’s abuse. At age eleven, 

A.M. told her sister about the assaults, who then told her stepfather. A.M.’s 

stepfather notified A.M.’s mother, who reported the assaults to police.

Appellant was arrested and charged with one count each of Criminal

Attempt to Commit Rape; Criminal Attempt to Commit Rape of a Child; 

Criminal Attempt to Commit Involuntary Deviate Sexual Intercourse 

(“IDSI”); Criminal Attempt to Commit IDSI with a Child; F-3 Indecent 

Assault; Indecent Assault, graded as a first-degree misdemeanor; Indecent 

Exposure; and Corruption of Minors. 

Appellant elected to proceed by way of a jury trial, which commenced 

on September 2, 2015. The Commonwealth withdrew the counts relating to 

Criminal Attempt to Commit Rape and IDSI, as well as Indecent Assault, 

graded as a first-degree misdemeanor. Following trial, the jury found 

Appellant guilty of F-3 Indecent Assault; Indecent Exposure; and Corruption 

of Minors.1 The jury made a specific finding that the Indecent Assault “was 

committed by touching the victim’s sexual or intimate parts with 

[Appellant’s] sexual or intimate parts[.]” Verdict Slip, filed 9/3/15. See 

 

1 18 Pa.C.S. § 3126(a)(7); 18 Pa.C.S. § 3127(a); and 18 Pa.C.S. § 

6301(a)(1)(ii), respectively. 
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also 18 Pa.C.S. § 3126(b)(3)(iii). The jury acquitted Appellant on the 

remaining charges. 

On December 21, 2015, the trial court sentenced Appellant as follows: 

11⁄2 to 7 years of incarceration for F-3 Indecent Assault, 1 to 5 years of 

incarceration for Indecent Exposure, and 1 to 3 years of incarceration for 

Corruption of Minors. The trial court set all sentences to run consecutively, 

for an aggregate sentence of 31⁄2 to 15 years of incarceration.

Appellant filed post-sentence motions, which were granted, in part, to 

permit him supervised contact with his own minor children, but otherwise 

were denied. 

Appellant timely appealed. Both Appellant and the trial court have 

complied with Pa.R.A.P. 1925.

On appeal, Appellant raises the following three issues.

1. Whether the evidence presented at trial was insufficient to 

support a guilty verdict of F-3 Indecent Assault where the 

evidence failed to establish, beyond a reasonable doubt, that the 

Indecent Assault was committed by touching the victim’s sexual 

or intimate parts with the sexual or intimate parts of [Appellant]. 

2. Whether the guilty verdicts against [Appellant] were contrary 

to the weight of the evidence presented at trial in that the 

testimony against [Appellant] was not credible. 

3. Whether the trial court abused its discretion by sentencing 

[Appellant] to an aggregate term of three and a half (31⁄2) to 

fifteen (15) years incarceration, in the aggravated range, which 

was excessive when considering the protection of the public, the 

gravity of the offense as it relates to the impact on the life of the 

victim and the community, and the rehabilitative needs of 

[Appellant]. 
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Appellant’s Brief at 7.

Sufficiency of the Evidence

Appellant first avers that the evidence was insufficient to support his 

conviction for F-3 Indecent Assault because “the lips of the victim’s closed 

mouth are not sexual parts” within the meaning of the grading portion of the 

statute defining Indecent Assault. Appellant’s Brief at 15. 

Evidentiary sufficiency is a question of law; thus, our standard of 

review is de novo and our scope of review is plenary. Commonwealth v. 

Diamond, 83 A.3d 119, 126 (Pa. 2013). 

In determining whether the evidence was sufficient to support a 

verdict, we view the evidence and all reasonable inferences to be drawn 

therefrom in the light most favorable to the verdict winner, the 

Commonwealth herein. Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. 

Super. 2013) (en banc). Furthermore, 

Evidence will be deemed sufficient to support the verdict when it 

established each element of the crime charged and the 

commission thereof by the accused, beyond a reasonable doubt. 

Nevertheless, the Commonwealth need not establish guilt to a 

mathematical certainty, and may sustain its burden by means of 

wholly circumstantial evidence. Significantly, we may not 

substitute our judgment for that of the factfinder; if the record 

contains support for the convictions they may not be disturbed. 

Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005) 

(citations and internal quotations omitted).

Indecent Assault is defined, in relevant part, as follows:
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(a) Offense defined.--A person is guilty of indecent assault if 

the person has indecent contact with the complainant, causes 

the complainant to have indecent contact with the person or 

intentionally causes the complainant to come into contact with 

seminal fluid, urine or feces for the purpose of arousing sexual 

desire in the person or the complainant and:

. . .

(7) the complainant is less than 13 years of age;

18 Pa.C.S. § 3126(a)(7). In addition, indecent contact is defined as “[a]ny 

touching of the sexual or other intimate parts of the person for the purpose 

of arousing or gratifying sexual desire, in any person.” 18 Pa.C.S. § 3101.

Ordinarily, Indecent Assault committed on a complainant less than 13 

years of age is graded as a misdemeanor of the first degree. However, it is 

graded as a felony of the third degree where, inter alia, “[t]he indecent 

assault was committed by touching the complainant's sexual or intimate 

parts with sexual or intimate parts of the person.” 18 Pa.C.S. § 

3126(b)(3)(iii). 

The relevant statutes do not define or include a list of qualifying 

“sexual or intimate parts.” As this Court has explained,

[t]he separate crime of indecent assault was established because 

of a concern for the outrage, disgust, and shame engendered in 

the victim rather than because of physical injury to the victim. 

Due to the nature of the offenses sought to be proscribed by the 

indecent assault statute, and the range of conduct proscribed, 

the statutory language does not and could not specify each 

prohibited act.

Commonwealth v. Provenzano, 50 A.3d 148, 153 (Pa. Super. 2012). 
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It is clear that “sexual” and “intimate parts” are not limited to 

genitalia. While interpreting the statute codifying Indecent Assault, this 

Court has consistently made it clear that 

[t]he language of the statutory section defining indecent contact 

includes both “sexual” and “other intimate parts” as possible 

erogenous zones for purposes of prosecution. Therefore, the 

phrase “other intimate parts” cannot refer solely to genitalia, as 

such a construction ignores the distinction between “sexual” and 

“other intimate parts,” making the latter term redundant.

Commonwealth v. Capo, 727 A.2d 1126, 1127 (Pa. Super. 1999). 

In the instant case, Appellant does not argue that the victim’s thighs 

do not constitute an “intimate part” under Section 3126(b)(iii). Instead, 

Appellant ignores the fact that A.M. testified that Appellant rubbed his penis 

on her thighs and attempted to push his penis down her shorts. Appellant’s 

conduct of rubbing his penis against A.M.’s thighs is sufficient in and of 

itself to sustain a conviction for F-3 Indecent Assault. See

Commonwealth v. Fisher, 47 A.3d 155, 158 (Pa. Super. 2012) (“The 

backs of the legs can be intimate parts of the body, just as the shoulders, 

neck, and back were in Capo, [supra] when touched for the purpose of 

arousing or gratifying sexual desire.”). 

Moreover, we have previously held that the mouth is included within 

the definition of “other intimate parts.” See Commonwealth v. Evans, 

901 A.2d 528, 537 (Pa. Super. 2006) (holding that appellant's inserting his 

tongue into the victim's mouth constituted Indecent Assault). 
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Nonetheless, Appellant attempts to distinguish the instant case from 

Evans, drawing a bright line between the inside of a person’s mouth and her 

lips. We find this argument wholly unpersuasive. Mouths, including lips, are 

both an intimate part of a person and a possible erogenous zone. See 

Capo, supra, at 1127. Moreover, this Court has no doubt that having one’s 

lips and mouth forcibly applied to another’s penis engenders the type of 

“outrage, disgust, and shame” our legislature sought to prevent. 

Provenzano, supra, at 153. 

Therefore, we conclude that the evidence was sufficient to convict 

Appellant of F-3 Indecent Assault where he used his penis, a sexual organ, 

to forcibly touch his 8 year-old-victim’s “intimate parts,” namely, her mouth 

and thighs.

Weight of the Evidence

Appellant next avers that the jury’s verdict was against the weight of 

the evidence, averring that A.M.’s testimony was not credible because of her 

delay in reporting the abuse and inconsistencies between her trial testimony 

and her prior statements. Appellant’s Brief at 17. 

When considering challenges to the weight of the evidence, we apply 

the following precepts:

The weight of the evidence is exclusively for the finder of 

fact, who is free to believe all, none or some of the 

evidence and to determine the credibility of witnesses.

Appellate review of a weight claim is a review of the 

exercise of discretion, not the underlying question of 
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whether the verdict is against the weight of the evidence. 

Because the trial judge has had the opportunity to hear 

and see the evidence presented, an appellate court will 

give the gravest consideration to the findings and reasons 

advanced by the trial judge when reviewing a trial court’s 

determination that the verdict is against the weight of the 

evidence. One of the least assailable reasons for granting

or denying a new trial is the lower court’s conviction that 

the verdict was or was not against the weight of the 

evidence and that a new trial should be granted in the 

interest of justice.

Commonwealth v. Talbert, 129 A.3d 536, 545-46 (Pa. Super. 2015) 

(internal quotation marks and citations omitted). 

“Resolving contradictory testimony and questions of credibility are 

matters for the finder of fact.” Commonwealth v. Hopkins, 747 A.2d 910, 

917 (Pa. Super. 2000). Further, “[i]n order for a defendant to prevail on a 

challenge to the weight of the evidence, the evidence must be so tenuous, 

vague and uncertain that the verdict shocks the conscience of the court.” 

Talbert, supra at 546 (internal quotation marks and citation omitted). It is 

well-settled that we cannot substitute our judgment for that of the trier of 

fact. Id. at 545. 

Appellant essentially asks us to reassess the credibility of the 

witnesses and reweigh the testimony and evidence presented at trial. 

Appellant’s Brief at 16-17. We cannot and will not do so. At trial, defense 

counsel cross-examined A.M. about the inconsistencies that Appellant now 

complains of on appeal, as well as her delay in reporting the assaults. 

Nonetheless, the jury found credible A.M.’s testimony that Appellant sexually 
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abused her. This verdict was not so contrary to the evidence as to shock the 

court’s conscience, and the trial court properly denied Appellant’s weight of 

the evidence claim. 

Discretionary Aspects of Sentence

In his third issue, Appellant challenges the discretionary aspects of his 

sentence. A challenge to the discretionary aspects of sentencing is not 

automatically reviewable as a matter of right. See Commonwealth v. Hill, 

66 A.3d 359, 363 (Pa. Super. 2013). Rather, where, as here, the appellant 

has preserved the sentencing challenge for appellate review by raising it at 

sentencing or in a timely post-sentence motion, the appellant must (1) 

“include in his brief a concise statement of the reasons relied upon for 

allowance of appeal with respect to the discretionary aspects of a 

sentence[,]” pursuant to Pa.R.A.P. 2119(f); and (2) “show that there is a 

substantial question that the sentence imposed is not appropriate under the 

Sentencing Code.” Id. at 363-64.

In the instant case, Appellant filed a timely notice of appeal and a 

timely post-sentence motion. He also included a separate Pa.R.A.P. 2119(f) 

statement in his appellate brief. Moreover, Appellant’s claim—that the trial 

court “failed to offer reasons for its sentence” and imposed an unreasonable 

sentence while ignoring the sentencing guidelines and relevant sentencing 

criteria—presents a substantial question for our review. See 

Commonwealth v. Scassera, 965 A.2d 247, 250 (Pa. Super. 2009) 
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(holding that a claim that the sentencing court failed to consider the 

applicable sentencing guidelines, prior to exceeding them, presents a 

substantial question); Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. 

Super. 2008) (holding that an “[a]ppellant’s contention that the sentencing 

court exceeded the recommended range in the Sentencing Guidelines 

without an adequate basis raises a substantial question for this Court to 

review.”). 

Accordingly, we turn to the merits of Appellant’s claim, mindful of our 

standard of review:

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. In this context, an abuse 

of discretion is not shown merely by an error in judgment. 

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. 

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation 

omitted).

Where a trial court imposes a sentence outside of the sentencing 

guidelines, 42 Pa.C.S. § 9721(b) requires the trial court to provide, in open 

court, a “contemporaneous statement of reasons in support of its sentence.” 

Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012). To 

satisfy the requirements of Section 9721(b), the trial court must:

demonstrate on the record, as a proper starting point, its 

awareness of the sentencing guidelines. Having done so, the 

sentencing court may deviate from the guidelines, if necessary, 
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to fashion a sentence which takes into account the protection of 

the public, the rehabilitative needs of the defendant, and the 

gravity of the particular offense as it relates to the impact on the 

life of the victim and the community, so long as it also states of 

record the factual basis and specific reasons which compelled it 

to deviate from the guideline range.

Id. (brackets and citation omitted). 

The on-the-record disclosure requirement does not require the trial 

court to make “a detailed, highly technical statement.” Commonwealth v. 

Hunzer, 868 A.2d 498, 514 (Pa. Super. 2005). Where the trial court has 

the benefit of a presentence investigation (“PSI”), our Supreme Court has 

held that “it is presumed that the court is aware of all appropriate 

sentencing factors and considerations, and that where the court has been so 

informed, its discretion should not be disturbed.” Commonwealth v. 

Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) (discussing 

Commonwealth v. Devers, 546 A.2d 12, 18-19 (Pa. 1988)). Where the 

trial court has reviewed the PSI, it may properly “satisfy the requirement 

that reasons for imposing sentence be placed on the record by indicating 

that he or she has been informed by the [PSI]; thus properly considering 

and weighing all relevant factors.” Ventura, supra at 1135 (citation 

omitted).

Finally, where the trial court deviates above the guidelines, this Court 

may only vacate and remand a case for resentencing if we first conclude that 

“the sentencing court sentenced outside the sentencing guidelines and the 

sentence is unreasonable.” 42 Pa.C.S. § 9781(c)(3). Although the 
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Sentencing Code does not define the term “unreasonable,” our Supreme 

Court has made clear that “rejection of a sentencing court's imposition of 

sentence on unreasonableness grounds [should] occur infrequently, whether 

the sentence is above or below the guideline ranges, especially when the 

unreasonableness inquiry is conducted using the proper standard of review.” 

Commonwealth v. Walls, 926 A.2d 957, 964 (Pa. 2007). 

In the instant case, the trial court sentenced Appellant to a minimum 

sentence at or near the top of the Sentencing Guidelines’ aggravated range, 

and to a maximum sentence at the statutory limit. The trial court also set 

those sentences to run concurrent to one another. Although these 

sentences fell outside of the standard sentencing range, we do not agree 

with Appellant that the trial court abused its discretion, failed to state 

sufficient reasons, or otherwise erred in imposing an aggregate sentence of 

31⁄2 to 15 years of incarceration, with credit for 348 days of time served. 

Prior to imposing sentence, the trial court made a lengthy statement, 

on the record, explaining its decision:

All right. I’ve had an opportunity to review the relevant 

materials. I’ve reviewed, of course, the PSI. I’ve taken that into 

account. 

I’ve taken into account the testimony that I heard during the 

course of the trial of this case. 

I have taken into account the fact that the Sexual Offender 

Assessment Board has determined that the defendant does not 

meet the statutory criteria to be classified as a sexually violent 

predator. 
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I’ve taken into account also especially the jury’s verdict, which is 

paramount. And the jury’s verdict was to the effect that the 

defendant was convicted of these serious offenses, but he was 

not guilty of even more serious offenses [namely, Criminal 

Attempt to Commit Rape of a Child and Criminal Attempt to 

Commit IDSI with a Child]. The Court cannot impose sentence 

as though that is not what occurred. 

So I’ve had to take into account also what the Sentencing 

Guidelines provide here. And one of the most important 

components, of course, of the Sentencing Guidelines deals with 

the prior record of the defendant. And the defendant’s prior 

record here is not particularly serious, both in the number of 

offenses and in the nature of them, which generates a prior 

record score of one. 

I have taken into account also the nature of this case. These 

cases are among the most troubling that we have. Damage is 

done, families sometimes completely destroyed. And there is 

not a thing that I can do sitting here to change that. No 

sentence that I impose can repair those damages. It simply is 

not possible for me to do so. So I must look to the question of 

what the sentence ought to be by examining the provisions of 

the Sentencing Code, the Sentencing Guidelines. 

And I’ve taken into account also not only the testimony I heard 

during the course of the trial but [the victim’s mother’s] 

testimony here today with respect to the impact that this has 

had on the family. I will tell you that I am not unhappy that the 

victim is not here today. It’s often been my view that the more 

times that the victims have been exposed to these surroundings 

even at this stage of the proceedings where sentence is about to 

be imposed, that the effect on them I believe is prolonged by 

more exposures here in the court. That does not mean I’m not 

taking into account the victim and the victim’s circumstances.

Our law recognizes that in cases of this nature, rehabilitative 

needs are often great. And the law provides both specifically 

through the SORNA process as well as through the parole 

process that counseling and treatment are necessary 

components and the Court need not specifically delinate what 

they shall be. The statute itself will set forth the registration 

requirements, and the Bureau of Corrections and the Board of 

Probation and Parole have the largest hand in determining what 

the nature of treatment and counseling shall be.
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. . .

The sentences imposed are in the aggravated range although the 

sentence imposed [for F-3 Indecent Assault] is not at the top of 

the aggravated range, but it is a sentence that is under the 

statutory maximums. Under the guidelines that the court must 

examine, I believe that this is a harsh sentence under the 

circumstances for the offenses for which the defendant was 

convicted. It will require supervision for many years. And I 

believe that under the circumstances, it’s an appropriate 

sentence.

N.T., Sentencing, 12/21/15, at 16-20.

Based on all of the foregoing, we conclude that the trial court did not 

abuse its discretion in imposing a sentence in the aggravated range of the 

sentencing guidelines. Although the trial court set the sentences imposed on 

each count to run consecutively, the aggregate sentence was not 

unreasonable. Moreover, the trial court, having considered Appellant’s PSI, 

the results of his Sexual Offender Assessment, and other pertinent 

aggravating and mitigating information, did not abuse its discretion in 

sentencing Appellant to an aggregate sentence of 31⁄2 to 15 years of 

imprisonment. Thus, Appellant’s argument to the contrary lacks merit.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/27/2016