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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

ISRAEL PEREZ

Appellant No. 2155 MDA 2015

Appeal from the Judgment of Sentence November 5, 2015

in the Court of Common Pleas of Berks County Criminal Division

at No(s): CP-06-CR-0002767-2013

BEFORE: MUNDY, STABILE, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED JULY 21, 2016

Appellant, Israel Perez, appeals from the judgment of sentence 

entered in the Berks County Court of Common Pleas. Appellant challenges 

the weight and sufficiency of the evidence, and the discretionary aspects of 

his sentence. We affirm.

The trial court summarized the facts as follows:

In December of 2012, [Victim] lived in a row house at 

539 Maple Street in the City of Reading. [N.T., 4/28/15,] 

at 22. [Victim] had lived in the house since August of 

2012, and by December she was living by herself.[1] Id. at 

22-23. Appellant was [Victim’s] landlord, and he lived 

next door . . . with his wife and children. Id. at 23, 26. 

[Victim] suffers from physical and mental disabilities. 

[Victim] had no key to her residence, and the only 

 

*

Former Justice specially assigned to the Superior Court.

1 When Victim first moved into the house, she moved in with Bobby Strauss. 

Id. at 22. Bobby’s mother and her boyfriend were living there prior to 

August 2012. Id. at 23.
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available phones were next door at Appellant’s house. Id.

at 25 [ ]. Appellant’s wife, Mag, helped [Victim] with 

errands such as doctor’s appointments and shopping. Id. 

[at 26.] Mag also managed [Victim’s] finances. Id. at 26-

27. [Victim] had less involvement with Appellant because 

of their language barrier─he spoke Spanish, and [Victim] 

spoke English. Id. at 27-28.

At around 8:00 P.M. on December 23, 2012, [Victim] 

was sitting on her bed writing recipes. Id. at 28. [Victim] 

slept on the first floor of her house in a hospital bed. Id.

at [25-]26. Suddenly, [Victim] got the sense that 

someone was in the room. Id. at 30. She looked up and 

saw Appellant standing at the foot of her bed with a shirt 

and no pants. Id. at 31. Appellant went to turn off the 

light, and [Victim] told him she would turn it off herself 

when she was done writing her recipes and ready for bed. 

Id. Appellant turned the light off anyway. Id. at 4[0]. 

Appellant came over to the bed, put [Victim’s] legs up, 

and got on top of her. Id. at 3[1]. He inserted his penis 

in [Victim’s] vagina after pulling her shorts down. Id. [at 

32.] Appellant said nothing, and [Victim] was too scared 

and stunned to say much of anything. Id. Appellant 

eventually finished and left, while [Victim] laid in her bed 

scared and confused. Id. [Victim] eventually went to 

sleep. Id. at 33.

Two days later, [Victim] was at a friend’s house for 

Christmas morning. Id. [ ] A friend named Bobby wanted 

to give [Victim] a hug and kiss, but she told him she did 

not want to be touched. Id. [at 34. Victim] returned to 

the house later that night, and she eventually told another 

friend [ ] named Kathy [Capece], what had happened. Id.

at 34-35.

Kathy called the police, who came to speak with 

[Victim]. Id. at 35. [Victim] gave a statement and was 

taken to [Reading Hospital and Medical Center]. Id. 

Jessica Drexler, a forensic nurse, conducted a rape kit 

examination with [Victim], who was tearful and quiet. Id.

at 49. [Victim] never returned to 539 Maple Street, not 

even to gather her possessions. Id. at 36, 60.
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On March 11, 2013, Criminal Investigator Justin 

Uczynski spoke with Appellant about the investigation and 

drove him to City Hall. Id. at 61. Detective John 

Carrasquillo, who speaks Spanish, interviewed Appellant at 

City Hall. Id. at 64. Appellant stated that he never had a 

sexual relationship of any kind with [Victim]. Id. at 66. 

Appellant provided a DNA sample at that time. Id. at 67.

Timothy Gavel is a forensic scientist employed by the 

Pennsylvania State Police DNA Laboratory. Id. at 72. 

Gavel’s investigation revealed that Appellant’s DNA had 

been recovered from [Victim’s] vagina and on her clothing. 

Id. at 79, 81.

Trial Ct. Op., 2/12/16, at 2-3. 

Victim testified at trial that she graduated from high school at the age 

of 21. N.T. at 19. She took special classes. Id. She stopped working in 

2001 because of an accident. Id. at 20-21. She testified as follows:

[The Commonwealth]: Did you ever go back to 539 Maple 

Street?

A: No.

Q: Not even once.

A: No.

Q: Where did you go?

A: I went to Bobby’s and Kathy Capece’s.

Id. at 35-36. 

Jessica Drexler, a Sexual Assault Nurse Examiner, testified at trial. Id.

at 46-47. The Commonwealth questioned Ms. Drexler about Victim’s 

demeanor when she was relating the facts of the incident.
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[The Commonwealth]: And what was [Victim’s] demeanor 

like when she was telling you this?

A: She was very quiet, tearful.

Q: How old was she that day?

A: Forty-one.

Q: Did she strike you as a typical woman of that age?

A: No, she did not.

Q: Why not?

A: She required a lot of assistance getting around the 

treatment room. It was difficult for her to get on and off 

of the bed, to put her legs in the stirrups. To have the 

exam completed, she needed some assistance. She even 

needed some assistance standing and getting her clothing 

off.

Q: Physically, you mean?

A: Yes.

Q: What was the issue?

A: She just couldn’t maneuver. She had some balance 

issues. She didn’t walk very well.

Id. at 49-50.

Following a jury trial, Appellant was convicted of sexual assault2and 

indecent assault.3 He was sentenced to five to ten years’ imprisonment, 

with 891 days’ credit for time served. Appellant filed post sentence motions, 

 

2 18 Pa.C.S. § 3124.1.

3 18 Pa.C.S. § 3126(a)(1).
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which were denied. This timely appeal followed. Appellant filed a court 

ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal and 

the trial court filed a responsive opinion. 

Appellant raises the following issues for our review:

A. Whether the evidence was insufficient to support the 

guilty verdict for Sexual Assault [ ] where the 

Commonwealth failed to prove beyond a reasonable doubt 

that Appellant engaged in sexual intercourse with [Victim] 

without [Victim’s] consent, where [Victim] testified that 

she did not communicate a lack of consent, either verbally 

or though physical cues, to Appellant.

 

B. Whether the evidence was insufficient to support the 

guilty verdict for Indecent Assault [ ] where the 

Commonwealth failed to prove beyond a reasonable doubt 

that [ ] Appellant had indecent contact with [Victim], or 

caused [Victim] to have indecent contact with Appellant, 

without [Victim’s] consent, where [Victim] testified that 

she did not communicate a lack of consent, either verbally 

or through physical cues, to Appellant?

C. Whether the verdicts of guilt[y] for Sexual Assault [ ] 

and Indecent Assault are against the weight of the 

evidence where the Commonwealth only presented 

evidence as to [Victim’s] lack of consent through Jessica 

Drexler and said evidence is wholly inconsistent with 

[Victim’s] testimony that she never communicated a lack 

of consent, either verbally or through physical cues, to 

Appellant.

D. Whether the trial court abused its discretion in imposing 

a sentence of 5 years to 10 years of incarceration where 

the sentence was manifestly excessive based on the facts 

elicited at trial and Appellant’s lack of any prior record, 

clearly unreasonable and contrary to the fundamental 

norms underlying the Sentencing Code and where the 

court imposed a sentence in the aggravated range of the 

sentencing guidelines without stating sufficient reasons on 

the record for the upward deviation.
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Appellant’s Brief at 5.

Appellant addresses his first two issues together. Appellant’s Brief at 

11. He argues 

[t]he evidence was insufficient to support the guilty 

verdicts for Sexual Assault and Indecent Assault where the 

Commonwealth failed to prove beyond a reasonable doubt 

that Appellant engaged in sexual intercourse or had 

indecent contact with [Victim] without her consent. 

Specifically, [Victim] testified that she did not 

communicate a lack of consent, either verbally or through 

physical cues, to Appellant.

Id. 

Our review is governed by the following principles: “A claim 

challenging the sufficiency of the evidence is a question of law.” 

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

[T]he critical inquiry on review of the sufficiency of the 

evidence to support a criminal conviction . . . does not 

require a court to ask itself whether it believes that the 

evidence at the trial established guilt beyond a reasonable 

doubt. Instead, it must determine simply whether the 

evidence believed by the fact-finder was sufficient to 

support the verdict. . . .

 * * *

When reviewing the sufficiency of the evidence, an 

appellate court must determine whether the evidence, and 

all reasonable inferences deducible from that, viewed in 

the light most favorable to the Commonwealth as verdict

winner, are sufficient to establish all of the elements of the 

offense beyond a reasonable doubt. . . .

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-37 (Pa. 2007) 

(citations and quotation marks omitted). 
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Sexual assault is defined as follows: 

Except as provided in section 3121 (relating to rape) or 

3123 (relating to involuntary deviate sexual intercourse), a 

person commits a felony of the second degree when that 

person engages in sexual intercourse or deviate sexual 

intercourse with a complainant without the complainant's 

consent.

18 Pa.C.S. § 3124.1. Regarding indecent assault, the statute provides that 

(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:

(1) the person does so without the complainant’s 

consent[.]

18 Pa.C.S. § 3126(a)(1).

Furthermore, the legislature also specified that “[t]he alleged victim 

need not resist the actor in prosecutions under this chapter[.]” 18 Pa.C.S. § 

3107; see also Commonwealth v. Smith, 863 A.2d 1162, 1176 (Pa. 

Super. 2004) (citation omitted) (stating the crime of sexual assault is 

intended to fill the loophole left by the rape and involuntary deviate sexual 

intercourse statutes by criminalizing non-consensual sex where the 

perpetrator employs little if no force). “The testimony of a complainant need 

not be corroborated in prosecutions under this chapter.” 18 Pa.C.S. § 3106. 
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Appellant’s argument that there was insufficient evidence because 

Victim did not communicate, either verbally or non-verbally, her lack of 

consent is without merit. See 18 Pa.C.S. §§ 3106, 3107; Smith, 863 A.2d 

at 1176. In the case at bar, reviewing the evidence in the light most 

favorable to the Commonwealth as verdict winner we find there is sufficient 

evidence to allow the jury to find every element of the crimes of sexual 

assault and indecent assault beyond a reasonable doubt. See Ratsamy, 

934 A.2d at 1235-36, 1237. 

Next, Appellant contends 

[t]he guilty verdicts were against the weight of the 

evidence where the Commonwealth only presented 

evidence as to [Victim’s] lack of consent through Jessica 

Drexler and said evidence is wholly inconsistent with 

[Victim’s] testimony that she never communicated a lack 

of consent to Appellant.

Appellant’s Brief at 13. He raises virtually the same arguments as he did for 

the sufficiency of the evidence.

Our Supreme Court has held that

[a] motion for a new trial alleging that the verdict was 

against the weight of the evidence is addressed to the 

discretion of the trial court. An appellate court, therefore, 

reviews the exercise of discretion, not the underlying 

question whether the verdict is against the weight of the 

evidence. The factfinder is free to believe all, part, or 

none of the evidence and to determine the credibility of 

the witnesses. The trial court will award a new trial only 

when the jury’s verdict is so contrary to the evidence as to 

shock one’s sense of justice. In determining whether this 

standard has been met, appellate review is limited to 

whether the trial judge’s discretion was properly exercised, 

and relief will only be granted where the facts and 
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inferences of record disclose a palpable abuse of 

discretion. Thus, the trial court’s denial of a motion for a 

new trial based on a weight of the evidence claim is the 

least assailable of its rulings.

Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011) (citations 

omitted).

Instantly, the trial court found no merit to Appellant’s claim that the 

verdict was against the weight of the evidence. Trial Ct. Op. at 6-7. 

Appellant asks this Court to reweigh the evidence. This we cannot do. See

Ramtahal, 33 A.3d at 609. Instantly, the jury’s verdict was “not so 

contrary to the evidence as to shock one’s sense of justice.” See id. We 

discern no abuse of discretion by the trial court. See id.

Lastly, Appellant challenges the discretionary aspects of his sentence. 

He claims 

[t]he sentencing court abused its discretion in imposing a 

5 to 10 year sentence where the sentence was manifestly 

excessive based on the facts elicited at trial and 

Appellant’s lack of a prior record, where the sentence was 

clearly unreasonable and contrary to the fundamental 

norms underlying the Sentencing Code, and the court 

imposed a sentence in the aggravated range without 

stating sufficient reasons on the record for the upward 

deviation.

Appellant’s Brief at 15. Appellant avers that “[a]lthough a court is not 

required to state every factor that must be considered under [42 Pa.C.S. §] 

9721(b), the record, as a whole, must reflect the court’s due consideration 

of those statutory factors.” Id.

This Court has stated,
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discretionary aspects of [an appellant’s] sentence [ ] are 

not appealable as of right. Rather, an appellant 

challenging the sentencing court’s discretion must invoke 

this Court’s jurisdiction by satisfying a four-part test. 

We 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. 720; 

(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).

Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015) (some 

citations omitted).

Instantly, Appellant timely filed his appeal, preserved the issue of an 

excessive sentence in his post-sentence motion, and included a statement in 

his brief which conforms with Pa.R.A.P. 2119(f). See Appellant’s Brief at 8-

9. Accordingly, we ascertain whether Appellant has raised a substantial 

question. See Leatherby, 116 A.3d at 83.

“A defendant presents a substantial question when he sets forth a 

plausible argument that the sentence violates a provision of the sentencing 

code or is contrary to the fundamental norms of the sentencing process.” 

Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) 

(quotation marks and citation omitted). “[A]rguments that the sentencing 

court failed to consider the factors proffered in 42 Pa.C.S. § 9721 . . . 

present a substantial question.” Id. at 1272 n.8. 
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Appellant sufficiently alleges his sentence was excessive and the court 

failed to give due consideration to the statutory factors in Section 9721. We 

therefore find that Appellant has raised a substantial question. See id. at 

1268, 1272 n.8. 

Our standard of review is as follows:

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. An abuse 

of discretion is more than just an error in judgment and, 

on appeal, the trial court will not be found to have abused 

its discretion unless the record discloses that the judgment 

exercised was manifestly unreasonable, or the result of 

partiality, prejudice, bias, or ill-will. 

Commonwealth v. Bricker, 41 A.3d 872, 875 (Pa. Super. 2012) (citation 

omitted). 

“Our Supreme Court has determined that where the trial court is 

informed by a pre-sentence report, 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. Downing, 990 A.2d 788, 794 (Pa. Super. 2010) 

(quotation marks and citation omitted).

At sentencing, the trial court stated:

I’ve reviewed the PSI in this case. I’ve taken into account 

also the testimony that I heard during the trial of the case. 

I’ve taken into account the provisions of the sentencing 

guidelines. I’ve taken into account both the conclusion of 

Dr. Valliere that [Appellant] is a sexually violent predator 

as well as the contents of the report itself. I’ve taken into 

account the recommendations of both counsel. And I’ve 
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taken into account also those factors that defense counsel 

has cited relating to [Appellant’s] possible deportation to 

Mexico.

N.T. Sentencing Hr’g, 11/5/15, at 9. Appellant, at sentencing, stipulated to 

the report of Dr. Valliere. Id. at 3. The Court explained to Appellant “that 

by stipulating to the report, [he had] been found to be a sexually violent 

predator by the Sexual Offenders Assessment Board.” Id. at 4. The trial 

court considered the PSI on the record. See id. at 9. Thus, we do not 

disturb the trial court’s discretion. See Bricker, 41 A.3d at 875; Downing, 

990 A.2d at 794. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/21/2016