J-S54023-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MARIO ABLE GUEVARA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 342 MDA 2019

Appeal from the Judgment of Sentence Entered October 9, 2018

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

No(s): CP-06-CR-0005700-2017

BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.

MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 12, 2019

Mario Able Guevara appeals from the judgment of sentence, entered in 

the Court of Common Pleas of Berks County, after a jury convicted him of 

involuntary deviate sexual intercourse (IDSI),1intimidation of a victim,2

sexual assault,3indecent assault (forcible compulsion),4indecent assault (lack 

of consent),5 and false imprisonment.6 Upon careful review, we affirm. 

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1 18 Pa.C.S.A § 3123(a)(1).

2 18 Pa.C.S.A. § 4952. 

3 18 Pa.C.S.A. § 3124.1. 

4 18 Pa.C.S.A. § 3126(a)(2). 

5 18 Pa.C.S.A. § 3126(a)(1). 

6 18 Pa.C.S.A. § 2903(a). 
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Between January of 2014 and October of 2017, Guevara supervised 

X.P.7 at Witman’s Cleaning Service (Whitman’s). X.P.’s duties included 

cleaning a warehouse in Fleetwood, Pennsylvania. On October 6, 2017, while 

X.P. was working alone in the warehouse, Guevara sneaked behind X.P. and 

grabbed her chest. X.P. told Guevara he was scaring her and demanded he

leave her alone. Initially, he complied. X.P. resumed her work and began 

cleaning a warehouse bathroom. 

While X.P. cleaned a toilet, Guevara entered the bathroom, shut the 

door, told X.P. there were no cameras, and bear hugged her. X.P. freed her 

hands and hit Guevara. He responded by pinning her against the counter with 

one hand, pulling her blouse down with the other, and biting her breast. 

Guevara then forced one hand inside X.P.’s underwear and began removing 

her pants. Guevara then placed his mouth on her vagina. X.P. freed herself 

when Guevara attempted to use both hands to perform a sex act. 

Outside the bathroom, X.P. accused Guevara of rape, to which he 

responded by saying no one would believe her because he did not penetrate 

her. He further stated no one would believe her without proof, and that she 

would lose her job. Once Guevara left the warehouse, X.P. went straight home 

and told her daughter what transpired in the warehouse. Over her daughter’s 

protests, X.P. refrained from contacting the police because she believed she 

would lose her job, as Guevara was married to the niece of Whitman’s owner. 

____________________________________________

7 We refer to the victim by her initials. 
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She also knew Guevara was aware she needed her job at Whitman’s to support 

herself and her children. X.P. did not report the incident to the police until 

after confronting Guevara and recording their conversation on her cell phone.

At the conclusion of a three-day trial on June 27, 2018, a jury convicted 

Guevara of the above-mentioned offenses. The court sentenced Guevara to 

an aggregate term of seven-and-a-half to twenty years’ incarceration. 

Guevara was also required to register with the Pennsylvania State Police for 

life, pursuant to the Sexual Offender Registration and Notification Act 

(“SORNA”).8 On October 15, 2018, Guevara timely filed post-sentence 

motions, which were denied by operation of law on March 20, 2019. In the 

interim, on February 21, 2019, Guevara timely filed the instant notice of 

appeal.9 On March 14, 2019 Guevara filed a court-ordered Pa.R.A.P. 1925(b) 

concise statement of errors complained of on appeal.

Guevara raises the following issues for our review:

1. Whether the Commonwealth failed to present sufficient 

evidence to support a guilty verdict for [i]ntimidation of 

[w]itnesses or [v]ictims as no evidence was presented at 

trial to show that [Guevara] used/threatened force, 

violence, or deception in any alleged efforts to intimidate 

the alleged victim to support [t]he grading as a felony of the 

first degree[?]

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8 42 Pa.C.S.A. § 9799.55(b)(2). 

9 Notices of appeal “filed after the announcement of a determination but before 

the entry of an appealable order shall be treated as filed after such entry and 

on the day thereof.” Pa.R.A.P. 905(a)(5). 
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2. Whether the trial court erred and abused its discretion when 

it instructed the jury that “oral contact with female genitalia 

is sufficient to support the penetration requirement for 

IDSI[,]” which allowed the jury to convict [Guevara] of both 

IDSI and sexual assault based upon something less than the 

required element that [Guevara] penetrated the 

complainant’s vagina[?] 

3. Whether the trial court erred by entering guilty verdicts as 

to the charges of IDSI, [i]ntimidation of [w]itness/[v]ictim, 

[s]exual assault, [i]ndecent [a]ssault—[f]orcible 

[c]ompulsion, [i]ndecent [a]ssault—[l]ack of [c]onsent, and 

[f]alse imprisonment as the verdicts were against the 

weight of the evidence, where the alleged victim’s testimony 

was not credible and contradicted by other evidence 

admitted during trial[?]

4. Whether the trial court erred as a matter of law and imposed 

an illegal sentence of lifetime sex offender registration as 

the requirements of [SORNA] are punitive and the statutory 

maximum sentence for the registerable offense, IDSI, is 20 

years[?]

Brief of Appellant, at 12–14. 

In his first claim, Guevara contends his conviction for victim intimidation

rests on insufficient evidence, arguing his statements “that no one would 

believe [X.P] if she reported the incident and that she would lose her job if 

she made the claim without proof” did not demonstrate that he “obstruct[ed], 

impede[d], impair[ed], prevent[ed] or interfere[d] with the administration of 

justice.” Brief of Appellant, at 24. 

We evaluate challenges to the sufficiency of the evidence under the 

following, well-established standard: 

We review claims regarding the sufficiency of the evidence by 

considering whether, viewing all the evidence admitted at trial in 

the light most favorable to the verdict winner, there is sufficient 
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evidence to enable the fact-finder to find every element of the 

crime beyond a reasonable doubt. Further, a conviction may be 

sustained wholly on circumstantial evidence, and the trier of fact—

while passing on the credibility of the witnesses and the weight of 

the evidence—is free to believe all, part, or none of the evidence. 

In conducting this review, the appellate court may not weigh the 

evidence and substitute its judgment for the fact-finder. 

Commonwealth v. Strafford, 194 A.3d 168, 174 (Pa. Super. 2018) 

(citations and quotations omitted). 

The Crimes Code, in relevant part, defines intimidation of witnesses or 

victims as follows:

§ 4952. Intimidation of witnesses or victims

(a) Offense defined.--A person commits an offense if, with the 

intent to or with the knowledge that his conduct will obstruct, 

impede, impair, prevent or interfere with the administration of 

criminal justice, he intimidates or attempts to intimidate any 

witness or victim to:

(1) Refrain from informing or reporting to any law 

enforcement officer, prosecuting official or judge concerning 

any information, document or thing relating to the 

commission of a crime.

18 Pa.C.S.A. § 4952(a)(1).

Further, we observe: 

Actual intimidation of a witness is not an essential element of the 

crime. The crime is committed if one, with the necessary mens 

rea, “attempts” to intimidate a witness or victim[.] The trier of 

the facts, therefore, could find that appellant attempted to 

intimidate his accuser and that he did so intending or, at least, 

having knowledge that his conduct was likely to, impede, impair 

or interfere with the administration of criminal justice[.] The 

Commonwealth is not required to prove mens rea by direct 

evidence. Frequently such evidence is not available. In such 

cases, the Commonwealth may rely on circumstantial evidence.
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Commonwealth v. Beasley, 138 A.3d 39, 48 (Pa. Super. 2016); see also

Commonwealth v. Von Evans, 163 A.3d 980, 986 (Pa. Super. 2017) (“[T]he 

factfinder may consider the nature of the underlying crime in evaluating the 

totality of the circumstances to determine whether the defendant intended to 

induce or to intimidate a witness from not testify at the trial for the underlying 

crime[.]”).

Prior to X.P.’s assault on October 6, 2017, Guevara knew X.P. provided 

the sole source of financial support for her children. N.T. Trial, 6/25/18, at 

97–98. Guevara was also aware X.P. knew he was related to Whitman’s owner

by marriage. See id. (recounting prior incident where Guevara’s wife 

threatened to have her aunt fire X.P. after Guevara made unsolicited advances 

towards X.P.). Immediately after the assault, Guevara repeatedly told X.P. 

no one would believe her, specifically stating “[n]o one is going to believe you 

because I didn’t penetrate you.” Id. at 96. Critically, he further told X.P.

“[she] didn’t have any proof, and [she] was going to lose [her] job.” Id. at 

97. These statements so unnerved X.P., she refused to report the incident 

until after recording a conversation with Guevara. Id. at 100–103. 

The circumstances surrounding the assault of X.P.—including averments 

that no one would believe her, that she lacked proof, and that she would lose 

her job—clearly evince Guevara’s intent to intimidate X.P. such that she would 

“[r]efrain from . . . reporting to any law enforcement officer . . . any 

information . . . relating to the commission of a crime.” 18 Pa.C.S.A. § 
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4925(a)(1); see Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015) 

(finding history of appellant’s threatening behavior towards his wife coupled 

with demands not to testify rendered furnished sufficient evidence under 

section 4952). Consequently, Guevara’s conviction for victim intimidation 

clearly rests upon sufficient evidence. See Doughty, supra at 958.

Next, Guevara argues the trial court instructing the jury that “‘[o]ral 

contact with female genitalia is sufficient to support the penetration 

requirement of IDSI’” was an abuse of discretion, because it eliminated the 

Commonwealth’s burden to prove penetration. Brief of Appellant, at 25 

(quoting N.T. Trial, 6/27/18, at 130). 

Preliminarily, we examine whether Guevara has preserved his claim on 

appeal. Objections to jury instructions must first be made “beyond the 

hearing of the jury” before “the jury retires to deliberate.” Pa.R.Crim.P. 

647(C). However, to preserve an objection raised during a charging 

conference, trial counsel must renew his or her objection after the offending 

instruction is offered by the court to the jury. See Commonwealth v. 

Parker, 103 A.3d 17, 29–30 (Pa. Super. 2014) (“Appellant has . . . waived 

his objection to the jury instructions because he failed to object after the jury 

had been charged.”). Our Supreme Court explicated this requirement as 

follows:

Although obligating counsel to take this additional step where a 

specific point for charge has been rejected may appear 

counterintuitive, as the requested instruction can be viewed as 

alerting the trial court to a defendant’s substantive legal position,
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it serves the salutary purpose of affording the court an opportunity 

to avoid or remediate potential error, thereby eliminating the need 

for appellate review of an otherwise correctable issue.

Commonwealth v. Pressley, 887 A.2d 220, 224 (Pa. 2005). 

Instantly, during the charging conference, Guevara’s trial counsel 

objected to the Commonwealth’s proposed jury amendment concerning the 

definition of penetration in the context of IDSI. N.T. Trial, 7/26/18, at 71–74. 

The court instructed the jury on the elements of IDSI, in relevant part, as 

follows:

Deviate sexual intercourse occurs if a person’s tongue penetrates 

the sexual organ of a woman. For all forms of deviate sexual 

intercourse, the slightest degree of penetration is sufficient, and 

no emission of semen is required. Oral contact with female 

genitalia is sufficient to support the penetration requirement for 

involuntary deviate sexual intercourse. 

Id. at 130. When the court asked if counsel had anything to add, Guevara’s 

trial counsel stated, “[n]o, Your Honor.” As counsel failed to object after the 

court instructed the jury, his second claim is consequently waived. Parker, 

supra at 29–30.

Third, Guevara argues his convictions rest on weak and contradictory 

evidence, rendering the jury’s verdict against the weight of the evidence. Brief 

of Appellant, 27–28. Specifically, he claims photos on X.P.’s cell phone, which 

show her working as a bartender after the assault, are inconsistent with 

“someone who was recently the victim of a crime.” Id. at 28. 

We review the trial court’s exercise of discretion in ruling on the weight 

claim, not the underlying question of whether the verdict was against the 
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weight of the evidence. Commonwealth v. Champney, 832 A.2d 403, 408 

(Pa. 2003). It is not our role, as a reviewing court, to reweigh the evidence 

and substitute our judgment for that of the fact-finder. Commonwealth v. 

Mitchell, 902 A.2d 430, 449 (Pa. 2006). Where the challenge to the weight 

of the evidence is predicated on the credibility of trial testimony, our review 

is extremely limited; unless the evidence is so unreliable “as to make any 

verdict based thereon pure conjecture, [such claims] are not cognizable on 

appellate review.” Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 

2009). We may only grant relief if the trial court’s verdict is “so contrary to 

the evidence as to shock one’s sense of justice.” Champney, supra at 408. 

In the Honorable Patrick T. Barrett’s Rule 1925(a) opinion, he stated

“[a] witness’s credibility is solely for the jury to determine[,]” and 

consequently, he refused to “second guess the verdicts[,] as the jury’s 

determinations are not so contrary to the evidence as to shock one’s sense of 

justice.” Rule 1925(a) Opinion, 5/23/19, at 8. We agree. At trial, the jury 

heard X.P.’s testimony regarding the photos. N.T. Trial, 7/25/18, at 263–66. 

X.P. stated she occasionally tended bar at “Jet Set,” but that she could not 

remember if she went to work at Jet Set after being assaulted. See id. at 266 

(“I don’t remember if I went to work after I was assaulted, but if I would have 

had to go to work, I would have gone to work.”). Not only are we unable to 

re-evaluate X.P.’s credibility, we are unsure as to how the existence of these 

photos in any way contradicts X.P.’s testimony. Consequently, we cannot find 
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Judge Barrett erred or abused his discretion in denying Geuvara’s weight 

claim. Champney, supra at 408. 

Finally, Guevara claims the trial court erred as a matter of law by 

ordering him to register as a sex offender for life under SORNA. Brief of 

Appellant, at 28–29. Guevara argues his sentence is illegal because it requires 

a sexual offender to register for a period that exceeds the statutory maximum 

sentence for the offense of which he was convicted. Id. at 29. 

A sentence is illegal where it exceeds statutory limits. See 

Commonwealth v. Bradley, 834 A.2d 1127 (Pa. 2003). This Court has 

repeatedly held “a sentencing requirement for a defendant to register as a 

sexual offender for a period of time exceeding the lawful statutory maximum 

for his offense is not illegal.” Commonwealth v. Martin, 205 A.3d 1247, 

1250 (Pa. Super. 2019); see Commonwealth v. Bricker, 198 A.3d 371, 377 

(Pa. Super. 2018); see also Commonwealth v. Strafford, 194 A.3d 168, 

173 (Pa. Super. 2018). Rather, 

SORNA’s registration requirements are an authorized punitive 

measure separate and apart from Appellant’s term of 

incarceration. The legislature did not limit the authority of a court 

to impose registration requirements only within the maximum 

allowable term of incarceration; in fact, the legislature mandated 

the opposite and required courts to impose registration 

requirements in excess of the maximum allowable term of 

incarceration.

Bricker, supra at 377 (quoting Strafford, supra at 173). Accordingly, 

Guevara’s sentence is not illegal, and his final claim fails. 
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Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/12/2019