J-S21001-15

*

 Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ROBERT ALVAREZ,

Appellant No. 1967 EDA 2013

Appeal from the Judgment of Sentence June 28, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0010755-2010

BEFORE: BOWES, JENKINS, and PLATT,* JJ.

MEMORANDUM BY BOWES, J.: FILED APRIL 10, 2015

Robert Alvarez appeals from the aggregate judgment of sentence of 

seventy-seven and one-half to 155 years incarceration after a jury found 

him guilty of rape of a child, involuntary deviate sexual intercourse (“IDSI”) 

of a child who is less than thirteen years of age, unlawful contact with a 

minor, sexual assault, and corruption of a minor. We affirm.

Louis Colon was walking at the Frankford High School football field in 

Philadelphia with his friend Vanessa Gonzalez on July 3, 2010. While 

walking he became suspicious of a van in the area with a New York license 

plate. Accordingly, he approached and peered inside. He saw a young boy 

inside the van sitting atop a mattress. Mr. Colon also witnessed Appellant 

exit the van before reentering. The van began to shake a little bit and Mr. 

Colon heard whispering inside. Concerned, Mr. Colon telephoned the police.
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Two officers, Officer Ryan Pownall and Officer Joanne Bondiskey 

responded in separate vehicles. Mr. Colon alerted the officers to the van and 

informed them that a small boy was being sexually assaulted. Officer 

Pownall opened the side door of the van and, upon tearing down a curtain, 

he observed the victim kneeling on a mattress pulling up his pants. Behind 

the victim, also attempting to pull up his pants, was Appellant. Officer 

Bondiskey confirmed that both Appellant and the victim had their pants 

down and unzipped and that Appellant was attempting to pull up his pants. 

Officer Pownall pulled Appellant from the vehicle, who resisted and the 

officer struck him three times in the face. The police arrested Appellant, 

whose pants, according to Mr. Colon and Ms. Gonzalez, were still below his 

waist when he was removed from the van. Mr. Colon related that the victim 

was crying, scared, and barefoot when police removed him from the van. 

Officers Bondiskey and Pownall also provided that the victim was hysterical 

and crying. Semen was found on the victim’s clothing, but DNA testing on 

that evidence was not completed. 

The victim indicated to police that he knew Appellant, who was a 

family friend. According to the victim, he was playing basketball when 

Appellant drove up and asked him if he wanted to go buy fireworks. The 

victim then asked his mother if he could go with Appellant. Appellant then 

took the victim to McDonald’s, where they ate. Thereafter, Appellant drove 
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to the Frankford High School football field area and parked his van. 

Appellant entered the back of the van and put his penis in the victim’s 

mouth. Additionally, the victim maintained that Appellant placed the victim’s 

mouth on Appellant’s penis. In addition, he stated that Appellant licked his 

anus and offered him $50 to have anal sex. 

The Commonwealth charged Appellant in its criminal complaint with 

general charges of rape, IDSI, unlawful contact with a minor, unlawful 

restraint, false imprisonment, statutory sexual assault, sexual assault, 

endangering the welfare of a child (“EWOC”), simple assault, luring a child 

into a motor vehicle, indecent assault, indecent exposure, corruption of a 

minor, and recklessly endangering another person (“REAP”). That complaint 

specified the allegations as follows:

At or near 5000 Rutland Street the Defendant engaged in 

deviate sexual intercourse by forcible compulsion or threat of 

same with [B.R.] (12 years old) by luring the complainant into 

the back of his van for the purpose of engaging in a sexual 

offense with a minor. Once the defendant had the complainant 

in the back of his van, the Defendant pulled down his pants and 

forced the complainant to perform oral sex on him 

(complainant’s mouth on Defendant’s penis). The Defendant 

then pulled down the complainant’s pants and put his mouth on 

the complainant’s penis. The Defendant then inserted his tongue 

inside of the complainant’s anus and attempted to insert his 

penis inside of the complainant’s anus (at which time the 

Defendant was interrupted by police discovery of the Defendant’s 

actions). 
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Criminal Complaint, 7/4/10, at 2. Hence, Appellant was placed on notice 

that he was being accused of engaging in improper sexual relations with a 

child less than thirteen. 

At the conclusion of the preliminary hearing, the court held over 

charges of rape by forcible compulsion, IDSI by forcible compulsion, unlawful 

contact with a minor, unlawful restraint, statutory sexual assault, sexual 

assault, false imprisonment, EWOC, luring a child into a motor vehicle, 

corruption of a minor, indecent assault by forcible compulsion, indecent 

exposure, simple assault, and REAP. Subsequently, the Commonwealth filed 

a thirteen count criminal information. In count one, the Commonwealth 

charged Appellant pursuant to 18 Pa.C.S. § 3121(A)(1), and asserted that 

Appellant engaged in sexual intercourse with a complainant by forcible 

compulsion or “[w]here the complainant was less than 13 years of age.” 

Criminal Information, 9/1/10, at 1. It further stated, 

Rape of a Child: Notice is hereby given that the Commonwealth 

further intends to proceed under 18 §§ 3121 (c), (d) & (e) 

providing that rape of a child less than 13 years of age shall be 

punishable by a maximum of 40 years imprisonment and rape of 

a child less than 13 years of age resulting in serious bodily injury 

shall be punishable by a maximum sentence of life 

imprisonment.

Notice is hereby given that the Commonwealth intends to 

proceed under 42 Pa.C.S. § 9714 (relating to sentences for 

second and subsequent offenses).
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Id. Similarly, in count two, the Commonwealth averred that Appellant 

engaged in IDSI by forcible compulsion or with a complainant less than 

thirteen years of age and further alleged, 

Involuntary Deviate Sexual Intercourse with a Child. Notice is 

hereby given that the Commonwealth further intends to proceed 

under 18 §§ 3123(b), (c) & (d) providing that involuntary 

deviate sexual intercourse with a child less than 13 years of age 

shall be punishable by a maximum of 40 years imprisonment 

and involuntary deviate sexual intercourse with a child less than 

13 years of age resulting in serious bodily injury shall be 

punishable by a maximum sentence of life of life imprisonment.

Notice is hereby given that the Commonwealth intends to 

proceed under 42 Pa.C.S. § 9714 (relating to sentences for 

second and subsequent offenses). 

Id. 

Appellant represented himself at trial, with the assistance of stand-by 

counsel. Following the jury trial, the jury found Appellant guilty of rape of a 

child, involuntary deviate sexual intercourse (“IDSI”) of a child who is less 

than thirteen years of age, unlawful contact with a minor, sexual assault, 

and corruption of a minor.1 The court then imposed sentence on June 28, 

2013. Specifically, it imposed consecutive mandatory minimum sentences, 

under 42 Pa.C.S. § 9714,2 of twenty-five to fifty years incarceration for the 

____________________________________________

1 The remaining charges were nolle prossed and did not go to the jury.

2 Since the mandatory sentencing statute related solely to prior convictions 

Alleyne v. United States, 133 S.Ct. 2151 (2013), this Court’s severability 

(Footnote Continued Next Page)
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charges of rape of a child, IDSI of a person less than thirteen, and unlawful 

contact with a minor.3 It further sentenced Appellant to two and one-half to 

five years imprisonment for the corruption of a minor count. The court did 

not impose a sentence for sexual assault. Appellant did not file a postsentence motion, but timely appealed on July 9, 2013. The court appointed 

new counsel for purposes of appeal and directed that a Pa.R.A.P. 1925(b) 

concise statement of errors complained of on appeal be filed and served on 

the court. Appellant complied, and the court authored its Rule 1925(a) 

opinion. The matter is now ready for this Court’s review.4

I. Is the Defendant entitled to an arrest of judgment on the 

charge of [r]ape as the Commonwealth did not prove either 

[sic] charge beyond a reasonable doubt and there is 

insufficient evidence to sustain the verdict?

(Footnote Continued) _______________________

decisions applying Alleyne, see Commonwealth v. Newman, 99 A.3d 86 

(Pa.Super. 2014) (en banc), do not apply.

3 Although the jury was charged and returned its verdict on charges of rape 

of a child and IDSI of a child less than thirteen, the commitment papers and 

sentencing order cited to rape by forcible compulsion and IDSI by forcible 

compulsion. Appellant did not object to the court’s jury instructions, but at 

sentencing claimed for the first time that the Commonwealth improperly 

amended his criminal information. The trial court addressed this issue in its 

Rule 1925(a) opinion, and Appellant has abandoned it on appeal. 

4 Appellant sought to proceed pro se before this Court. We remanded for a 

Grazier hearing. The trial court conducted such a proceeding and 

determined that Appellant was not knowingly, intelligently, and voluntarily 

waiving his right to counsel.
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II. Is the Defendant entitled to a new trial as the result of 

prosecutorial misconduct when the prosecutor argued 

“ejaculation” when ejaculation was never demonstrated nor 

proven during the Commonwealth’s case?

III. Is the Defendant entitled to a remand to the [s]entencing 

[c]ourt for a new [s]entencing [h]earing as the [c]ourt 

imposed a manifestly excessive sentence of 77 1⁄2 to 155 

years which abused the discretion of the [c]ourt?

IV. Is the Defendant entitled to a remand to the [s]entencing 

[c]ourt for a new [s]entencing [h]earing as a result of legal 

errors in sentencing where the [c]ourt considered improper 

sentencing factors and did not confine its analysis to 

sentencing norms and more specifically where the [c]ourt said 

that it could “only imagine in terms of all the other children 

that he has abused.”

Appellant’s brief at 3. 

Appellant’s initial claim is a challenge to the sufficiency of the evidence 

on the rape charge. In performing such a review, we consider all of the 

evidence admitted, even improperly admitted evidence. Commonwealth v. 

Watley, 81 A.3d 108, 113 (Pa.Super. 2013) (en banc). We view the 

evidence in a light most favorable to the Commonwealth as the verdict 

winner, drawing all reasonable inferences from the evidence in favor of the 

Commonwealth. Id. 

The evidence “need not preclude every possibility of innocence and the 

fact-finder is free to believe all, part, or none of the evidence presented.” 

Id. When evidence exists to allow the fact-finder to determine beyond a 

reasonable doubt each element of the crimes charged, the sufficiency claim 
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will fail. Id. In addition, the Commonwealth can prove its case by 

circumstantial evidence. Where “the evidence is so weak and inconclusive 

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

combined circumstances[,]” a defendant is entitled to relief. Id. This Court 

does not “re-weigh the evidence and substitute our judgment for that of the 

fact-finder.” Id. 

Appellant’s argument on appeal is different from the issue he leveled 

in his Rule 1925(b) statement. There, he asserted that the evidence was 

insufficient under Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993), 

i.e., the conviction was based on conjecture and mere surmise. However, 

Appellant now maintains that an individual cannot be found guilty of both 

rape and IDSI based on the same act. In essence, Appellant is leveling a 

merger or double jeopardy type position. Indeed, he contends that the 

General Assembly did not intend for the same act to subject a person “to 50 

to 100 years instead of 25 to 50 years in the state prison.” Appellant’s brief 

at 8. He continues by noting that the trial court concluded that Appellant 

was not subject to double jeopardy. 

To the extent Appellant is contesting that the evidence introduced 

against him was insufficient to establish the elements of both crimes, that 

issue is waived due to his failure to advance such a position. While 

Appellant’s actual argument here was not proffered below, insofar as it 
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relates to merger and double jeopardy concerns, we address it as a nonwaivable illegal sentencing question. See Commonwealth v. Kelly, 78 

A.3d 1136 (Pa.Super. 2013). 

Appellant relies on Commonwealth v. Lee, 638 A.2d 1006 (Pa.Super. 

1994). Lee, however, supports his sentence for both rape and IDSI. In 

Lee, the defendant sodomized the victim twice and coerced the victim into 

performing oral sex on two occasions. The Commonwealth charged the 

defendant with four counts each of rape and IDSI, and the court sentenced 

him on all eight counts. In vacating the judgment of sentence, however, the 

Lee Court recognized that separate acts can support multiple sentences. 

See Lee, supra (citing Commonwealth v. Romanoff, 392 A.2d 881 

(Pa.Super. 1978); Commonwealth v. Pifer, 425 A.2d 757 (Pa.Super. 

1981); Commonwealth v. Adams, 442 A.2d 277 (Pa.Super. 1982); 

Commonwealth v. Hitchcock, 565 A.2d 1159 (Pa. 1989)). The Lee panel 

itself opined, “a defendant can commit multiple criminal acts during one 

episode if he commits multiple penetrations.” Id. at 1013. Thus, Lee could 

have been sentenced on four separate counts, but not eight. 

Appellant’s issue fails because he committed different acts to establish 

each of the elements of rape of a child and IDSI of a person less than 

thirteen. The child’s testimony was that Appellant performed oral sex on the 

victim and made the victim conduct oral sex on Appellant, and Appellant 
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licked his anus. Each of these actions are separate acts that would 

separately meet the requirements of rape of a child and IDSI of a child less 

than thirteen. Since multiple acts occurred, Appellant’s double jeopardy 

styled claim for the two separate sentences fails. 

The second issue Appellant raises is that the prosecution committed 

misconduct by asserting during argument that Appellant had ejaculated 

where there was no evidence of this fact. We consider whether a new trial is 

warranted based on prosecutorial misconduct under an abuse of discretion 

standard. See Commonwealth v. Culver, 51 A.3d 866, 871 (Pa.Super. 

2012). Here, the Commonwealth introduced evidence that semen was found 

on the victim’s clothing. Thus, the prosecutor’s argument that Appellant 

ejaculated is a fair inference from the evidence presented. Appellant’s 

position is frivolous and, in fact, he cites to no case law in support of his 

position. 

Appellant’s final two issues in his statement of questions presented 

implicate discretionary sentencing review. First, Appellant alleges that the 

court erred in imposing a manifestly excessive sentence. Second, Appellant 

maintains that the court erred in considering improper sentencing factors in 

fashioning its sentence. We note that the argument portion of Appellant’s 

brief for his third issue does not actually match the claim presented in his 

statement of questions presented. 
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Appellant contends in the argument section of his brief that the court 

improperly considered what Appellant may have done to other victims. 

Further, Appellant posits that the court erred in considering his lack of 

remorse. Each of these arguments do pertain to the discretionary aspects of 

Appellant’s sentence, but he does not provide a Pa.R.A.P. 2119(f) statement 

with respect to those claims.

To adequately preserve a discretionary sentencing claim, the 

defendant must present the issue in either a post-sentence motion, or raise 

the claim during the sentencing proceedings. Commonwealth v. 

Cartrette, 83 A.3d 1030, 1042 (Pa.Super. 2013) (en banc). Further, the 

defendant must “preserve the issue in a court-ordered Pa.R.A.P. 1925(b) 

concise statement and a Pa.R.A.P. 2119(f) statement.” Id. Thus, the 

positions articulated in the third argument section of Appellant’s brief are 

waived. Moreover, Appellant failed to preserve any sentencing issues in a 

post-sentence motion. Accordingly, Appellant’s additional discretionary 

sentencing claims are waived. 

Judgment of sentence affirmed. Appellants Pro se Motion for Waiver of 

Counsel – Second Application is Denied.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/10/2015