J. A09003/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

ELIEZER ALMANZAR, : No. 1049 MDA 2015

:

 Appellant :

Appeal from the Judgment of Sentence, December 29, 2014,

in the Court of Common Pleas of York County

Criminal Division at No. CP-67-CR-0000294-2014

BEFORE: FORD ELLIOTT, P.J.E., JENKINS AND PLATT,* JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 20, 2016

Eliezer Almanzar appeals from the judgment of sentence entered on 

December 29, 2014, after a jury convicted him of one count of involuntary 

deviate sexual intercourse with a child1(“IDSI”), one count of aggravated 

indecent assault of a child,2and one count of corruption of minors.3 The trial 

court sentenced appellant to a term of incarceration of 6 to 12 years on the 

IDSI count, which merged with the aggravated indecent assault count, and 

 

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 3123(b).

2 18 Pa.C.S.A. § 3125(b).

3 18 Pa.C.S.A. § 6301(a)(1)(ii).
J. A09003/16

- 2 -

to a concurrent 5-year term of incarceration on the corruption of minors 

count. We affirm.

The record reflects that appellant’s convictions stem from an incident 

involving the 4-year-old daughter of appellant’s then-girlfriend. The incident 

occurred on September 7, 2013. On that day, appellant had made 

arrangements with the victim’s mother to pick the victim up at her 

babysitter’s home, take her out to eat, and take her to a movie. (Notes of 

testimony, 9/9-11/14 at 159.) After appellant picked the victim up, he took 

her to his home, claiming that he needed to get money and his phone 

charger. (Id. at 159.) While at his residence, appellant took the victim to 

his bedroom, removed her pants and underwear, and licked her vagina. 

(Id. at 84-93.) Afterwards, appellant instructed the victim that she should 

not tell her mother. (Id. at 86.) He then took the victim to McDonald’s for 

a Happy Meal and then to an ice cream shop. (Id. at 85-86.) The next day, 

the victim told her mother that appellant had licked her private part. (Id. at 

86, 100.) The victim’s mother immediately called police and took the victim 

to a hospital emergency room. (Id. at 101.)

The trial court set forth the following procedural history:

On March 21, 2014, [appellant] filed an 

Omnibus Pretrial Motion. The Commonwealth lodged 

a response on June 24, 2014. The Commonwealth 

then filed Commonwealth’s Motion to Allow 

Testimony of Out-of-Court Statements Made by Child 

Victims Pursuant to 42 Pa.C.S.A. § 5985.1, on 

June 27, [2014]. Following a hearing on August 22, 

2014, we denied the suppression of Appellant’s 
J. A09003/16

- 3 -

confession, which had been challenged in Appellant’s 

Omnibus. And on August 29, 2014, at the 

conclusion of a hearing, this Court granted the 

Commonwealth’s tender years exception.

On September 11, 2014, a jury of the 

Appellant’s peers found him guilty of [IDSI], 

Aggravated Indecent Assault of a Child, and 

Corruption of Minors. We raised the issue of 

merging counts and then set it aside to be dealt with 

at the time of sentencing. On September 22, 2014, 

the Appellant filed a Motion for Arrest of 

Judgment/Motion for Acquittal.[Footnote 2] 

Thereafter, the Appellant filed a Motion for 

Extraordinary [R]elief, which was docketed on 

December 19, 2014, that challenged [the] 

Commonwealth for having invoked a mandatory 

minimum. [The] Commonwealth filed a response on 

December 26, 2014; however, at sentencing, on 

December 29, 2014, the Commonwealth dropped the 

mandatory minimum because new case law 

convinced them that it was unconstitutional. We 

then proceeded to sentence the Appellant to six to 

twelve years for the [IDSI] and a concurrent term of 

five years for Corruption of Minors. We merged the 

Indecent Assault charge with the [IDSI] charge.

[Footnote 2] This motion stated that 

counsel was gathering more information 

for this motion. We do not see in the 

record that we disposed of the motion; 

however, nor do we see that defense 

counsel submitted any further 

information upon which the motion was 

to be based. Rather, we believe the 

motion was dealt with through timely 

post-sentence motions.

On January 8, 2015, the Appellant filed postsentence motions. As a result of the motions being 

undecided within one hundred and twenty days of 

filing, they were denied as a matter of law in 

accordance with Rule 720 of the Rules of Criminal 

Procedure. Counsel for the Appellant then filed an 
J. A09003/16

- 4 -

appeal with the Superior Court [which] ordered him 

to file the Appellant’s Praecipe for Entry of Order 

Denying Post-Sentence Motions by Operation of Law, 

which counsel did on July 21, 2015. We signed a 

related order on July 28, 2015.

On June 17, 2015, this Court received a Notice 

of Appeal. On July 1, 2015, pursuant to Rule 

1925(b) of the Pennsylvania Rules of Appellate 

Procedure, we ordered the Appellant to file a 

statement of matters complained of. That statement 

was docketed on July 21, 2015.

Trial court opinion, 10/28/154at 1-3 (footnote 1 omitted).

Appellant raises the following issues for our review:

I. Whether the [T]rial Court erred by not granting 

the Appellant’s [Judgment] of Acquittal as the 

Commonwealth failed to prove in their case 

that there was penetration which was a 

necessary element to support the charge of [] 

IDSI?

II. Whether the Trial Court erred by not granting 

the Appellant’s Suppression Motion with 

respect to statements made to the police at 

the time of his interview as said statements 

were provided under a coercive environment 

and the Court’s failure to do so prejudiced the 

Appellant at the time of trial?

Appellant’s brief at 6.

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 

 

4 We note that the trial court’s opinion is dated October 27, 2015, but was 

filed on October 28, 2015.
J. A09003/16

- 5 -

our judgment for the fact-finder. In addition, we 

note that the facts and circumstances established by 

the Commonwealth need not preclude every 

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 proof 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 the 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. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004) 

(citation omitted).

The Crimes Code defines IDSI as follows: “A person commits 

involuntary deviate sexual intercourse with a child, a felony of the first 

degree, when the person engages in deviate sexual intercourse with a 

complainant who is less than 13 years of age.” 18 Pa.C.S.A. § 3123(b). The 

Crimes Code defines deviate sexual intercourse, in relevant part, as 

“[s]exual intercourse per os or anus between human beings.” 18 Pa.C.S.A. 

§ 3101. The Crimes Code defines sexual intercourse, in relevant part as, 

“[i]n addition to its ordinary meaning, [it] includes intercourse per os or per 

anus, with some penetration however slight.” Id. This court has held that 

“any involuntary contact by the mouth, including the tongue as well as the 

lips, [with the sexual organ of another person] . . . meet[s] the test of 
J. A09003/16

- 6 -

involuntary deviate sexual intercourse.” Commonwealth v. L.N., 787 A.2d 

1064, 1071 (Pa.Super. 2001), appeal denied, 800 A.2d 931 (Pa. 2002). 

See also In the Interest of J.R., 648 A.2d 28 (Pa.Super. 1994), appeal 

denied, 655 A.2d 515 (Pa. 1995) (stating that “[d]eviate sexual intercourse 

is considered to have occurred if one’s mouth or tongue penetrates the 

vaginal area of another”); see also Commonwealth v. McIlvaine, 560 

A.2d 155 (Pa.Super. 1989), reversed on other grounds, 603 A.2d 1021 

(Pa. 1992) (holding that where victim was forced to kiss defendant’s penis, 

testimony was sufficiently descriptive to warrant the inference by the jury 

that defendant penetrated, “however, slight,” the victim’s mouth).

Here, appellant complains that there was insufficient evidence to 

convict him of IDSI because the victim did not testify at trial that appellant 

penetrated her. Appellant goes on to complain that the trial court somehow 

erred in admitting the victim’s videotaped Children’s Advocacy Center 

(“CAC”) interview, despite appellant stipulating to its admission. Appellant 

argues that but for the admission of that videotape, which, again, appellant 

stipulated to, there would have been no evidence of penetration sufficient to 

convict appellant of IDSI because the victim did not testify at trial that 

appellant penetrated her. Appellant further complains that because he was 

not present at the CAC interview, he was unable to cross-examine the victim 

with respect to penetration. Appellant is mistaken.

The record reflects that the victim testified as follows:
J. A09003/16

- 7 -

Q. Okay. What did he do after he pulled down 

your pants?

A. Licked me.

Q. He licked you?

A. (Nodded head affirmatively.)

Q. Okay. Where did he lick you?

A. Down where he pulled down my pants.

Q. And what do you call the part that he licked?

A. My private.

Notes of testimony, 9/9-11/14 at 83-84. The Commonwealth then showed 

the victim a drawing of a naked female and requested her to circle the part 

of the female’s body that appellant licked. (Id. at 84-85.) The victim circled 

the female genitalia. (Id. at 85; see also Commonwealth Exhibit 1.)

Clearly, the record reflects that the Commonwealth produced evidence 

that there was oral contact with appellant’s mouth and the victim’s genitalia. 

That evidence was sufficient to establish penetration however slight in order 

to convict appellant of IDSI.

To the extent that the victim’s trial testimony contradicted what she 

said during the CAC interview, such contradictions were to be resolved by 

the fact-finder, which, in this case, was a jury of appellant’s peers. It is not 

our role to usurp the fact-finder’s function, and we will not do so. Finally, 

because appellant cross-examined the victim at trial, the record belies his 
J. A09003/16

- 8 -

complaint that he had no opportunity to cross-examine the victim with 

respect to penetration. Therefore, appellant’s first claim lacks merit.

Appellant’s second and final complaint is that the trial court erred in 

denying his motion to suppress appellant’s confession.

Our standard of review for challenges to the denial of a suppression 

motion is as follows:

[We are] limited to determining whether the 

suppression court’s factual findings are supported by 

the record and whether the legal conclusions drawn 

from those facts are correct. Because the 

Commonwealth prevailed before the suppression 

court, we may consider only the evidence of the 

Commonwealth and so much of the evidence for the 

defense as remains uncontradicted when read in the 

context of the record as a whole. Where the 

suppression court’s factual findings are supported by 

the record, we are bound by these findings and may 

reverse only if the court’s legal conclusions are 

erroneous. Where . . . the appeal of the 

determination of the suppression court turns on 

allegations of legal error, the suppression court’s 

legal conclusions are not binding on an appellate 

court, whose duty it is to determine if the 

suppression court properly applied the law to the 

facts. Thus, the conclusions of law of the courts 

below are subject to our plenary review.

Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa.Super. 2012), 

appeal denied, 65 A.3d 413 (Pa. 2013) (citations omitted).
J. A09003/16

- 9 -

Here, appellant specifically complains that because he was subject to a 

custodial interrogation and was not given his Miranda5 warnings, the trial 

court erred in denying his suppression motion.

“Police detentions in Pennsylvania become custodial 

when, under the totality of the circumstances, the 

conditions and/or duration of the detention become 

so coercive as to constitute the functional equivalent 

of arrest.” Commonwealth v. Ellis, 549 A.2d 

1323, 1332 (Pa.Super. 1988) (citing California v. 

Beheler, 463 U.S. 1121, (1983)). “Interrogation is 

police conduct calculated to, expected to or likely to 

evoke admission.” Commonwealth v. Johnson, 

541 A.2d 332, 336 (Pa.Super. 1988) (citation and 

quotations omitted). The overlying test to determine 

whether a person is being subjected to a custodial 

interrogation necessitating Miranda warnings is 

whether he is physically deprived of his freedom in 

any significant way or is placed in a situation in 

which he reasonably believes that his freedom of 

action or movement is restricted by such 

interrogation. See Commonwealth v. Chacko, 

459 A.2d 311, 314 (Pa. 1983). “The standard for 

determining whether police have initiated a custodial 

interrogation or an arrest is an objective one, with 

due consideration given to the reasonable impression 

conveyed to the person interrogated rather than the 

strictly subjective view of the troopers or the person 

being seized.” Commonwealth v. Edmiston, 634 

A.2d 1078, 1085-86 (Pa. 1993). The factors that the 

court considers to determine whether there has been 

a custodial interrogation include: the basis for the 

detention; its length; its location; whether the 

suspect was transported against his or her will, how 

far and why; whether restraints were used; whether 

the law enforcement officer showed, threatened or 

used force; and the investigative methods employed 

to confirm or dispel suspicions. See 

Commonwealth v. Peters, 642 A.2d 1126, 1130 

(Pa.Super. 1994) (en banc).

 

5 Miranda v. Arizona, 384 U.S. 436 (1966).
J. A09003/16

- 10 -

Police detentions become custodial when, under the 

totality of the circumstances, the conditions and/or 

duration of the detention become so coercive as to 

become the functional equivalent of an arrest. See 

Ellis, 549 A.2d at 1332. “Arrest is an act that 

indicates an intention to take a person into custody 

or that subjects the person to the will and control of 

the person making the arrest.” Commonwealth v. 

Gwynn, 723 A.2d 143, 148 (Pa. 1998).

Commonwealth v. Turner, 772 A.2d 970, 974 (Pa.Super. 2001).

We must first determine whether, under the totality of the 

circumstances, the detention became so coercive as to constitute the 

functional equivalent of arrest and, consequently, necessitate the provision 

of Miranda warnings.

The record reflects that Detective Kyle Hower of the York County Police 

Department contacted appellant and asked him if he would be willing to 

speak with the detective. (Notes of testimony, 6/26/14 at 18.) The two 

then made arrangements for the interview. (Id.) Appellant arrived at the 

police department voluntarily. (Id.) Because appellant made his own 

transportation arrangements, nothing in the record indicates that appellant 

was transported to the police department against his will. (Id.)

In addition to Detective Hower, Amy Abel, of Children & Youth, was 

present. (Id. at 7, 18.) The interview lasted approximately one hour. (Id.

at 12.) Nothing in the record indicates that restraints were used. 

Detective Hower told appellant that appellant was free to leave at any time 

and that he was not under arrest. (Id. at 11-12.) The door to the interview 
J. A09003/16

- 11 -

room remained unlocked during the interview. (Id. at 11.) Appellant never 

asked to leave the interview. (Id. at 9, 16). Appellant never tried to leave 

the interview. (Id. at 10, 16.) Detective Hower provided appellant with 

water. (Id. at 19.) Nothing in the record indicates that Detective Hower 

showed, threatened, or used force during the interview. Detective Hower 

testified that he used the investigative method of moving his chair closer to 

appellant in order to establish rapport. (Id. at 18-19.) Appellant did not 

shy away from the detective when he moved closer to appellant. (Id. at 

20.) At the conclusion of the interview, appellant left the department. (Id.

at 10.)

Under the totality of the circumstances, the detention was not 

custodial because nothing in the record indicates that appellant was 

physically deprived of his freedom in any significant way or placed in a 

situation where he would reasonably believe his freedom of action or 

movement was restricted. Consequently, appellant was not entitled to 

Miranda warnings.

We must next determine whether appellant’s confession was 

voluntary.

Voluntariness is determined from the totality of the 

circumstances surrounding the confession. The 

question of voluntariness is not whether the 

defendant would have confessed without 

interrogation, but whether the interrogation was so 

manipulative or coercive that it deprived the 

defendant of his ability to make a free and 

unconstrained decision to confess. The 
J. A09003/16

- 12 -

Commonwealth has the burden of proving by a 

preponderance of the evidence that the defendant 

confessed voluntarily.

Commonwealth v. Ogrod, 839 A.2d 294, 320 (Pa. 2003) (citation 

omitted).

Here, the Commonwealth met its burden. Under the totality of the 

circumstances as set forth above, nothing in the record suggests that the 

confession was the product of manipulation or coercion. Rather, appellant 

arrived at the interview freely and voluntarily, and appellant confessed freely 

and voluntarily. Therefore, this claim lacks merit.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/20/2016