J-A14020-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DAVID DOMINGUEZ SANCHEZ 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2617 EDA 2022

Appeal from the Judgment of Sentence Entered March 25, 2022

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

No(s): CP-15-CR-0002797-2020

BEFORE: PANELLA, P.J., DUBOW, J., and SULLIVAN, J.

MEMORANDUM BY DUBOW, J.: FILED AUGUST 15, 2023

Appellant, David Dominguez Sanchez, appeals from the Judgment of 

Sentence entered in the Chester County Court of Common Pleas following his 

conviction of numerous offenses related to his sexual assault of a minor.

Appellant challenges an evidentiary ruling, the weight of the evidence, and 

several aspects of his sentencing. After careful review, we remand for a new 

sentencing hearing. In all other respects, we affirm.

The relevant facts and procedural history are as follows. Appellant 

sexually abused his minor stepdaughter over a period of 6 years until she 

disclosed the abuse to family members. The Commonwealth charged 

Appellant with 11 counts related to this abuse, including Rape of a Child, 
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Aggravated Indecent Assault of a Child, and Involuntary Deviate Sexual 

Intercourse with a Child.1

Relevant to this appeal, the Commonwealth notified Appellant’s counsel 

prior to trial that it planned to present the testimony of the victim’s mother

regarding her conversation with Appellant that occurred following her 

daughter’s disclosure, specifically that Appellant had told the victim’s mother

to believe what her daughter told her. 

During Appellant’s two-day trial, the jury heard testimony from the 

victim, the victim’s mother, and other witnesses to the abuse. As expected, 

the victim’s mother testified that Appellant had told her to believe the victim 

about the accusations. In addition, she testified that Appellant remained silent 

when she asked him if the allegations were true. Defense counsel objected to 

the testimony about Appellant’s silence and immediately requested a sidebar

at which he moved for mistrial. Defense counsel argued at sidebar that “the 

witness just essentially said that the defendant admitted to his conduct” and 

that counsel was not notified about this “admission of guilt.” N.T. Trial, 

10/19/21, at 144. The trial court overruled this objection.

On October 21, 2021, the jury found Appellant guilty of all charges. The 

court ordered an assessment from the Sexual Offender Assessment Board and 

deferred sentencing.

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1 18 Pa.C.S. § 1321(c), § 3125(b), and § 3123(b), respectively.
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On March 24, 2022, the court found that Appellant met the criteria to 

be designated a sexually violent predator and proceeded to sentencing. The 

judge explained various factors he considered in fashioning Appellant’s 

sentence, including the impact on the victim. The court opined that because 

Appellant had chosen to go to trial, he thereby forced the victim to relive her 

abuse through her testimony. The court emphasized that “[t]he defendant 

here did not plead guilty or in any way seek to spare further anguish or 

embarrassment [of] a young woman victim, but made her testify and forced 

her to relive the assault, not only in her mind, but in front of about 25 people 

. . . .” N.T. Sentencing, 3/24/22, 49. The court then imposed an aggregate 

sentence of 40 to 80 years’ incarceration.2

Appellant filed a post-sentence motion, which the court denied.

Appellant timely appealed. Both Appellant and the Trial Court complied 

with Pa.R.A.P. 1925.

Appellant raises the following issues on appeal:

1. Did the trial court err in denying motion for mistrial when 

Commonwealth witness testified she asked Appellant if he did what 

he was accused of and in response Appellant remained silent?

2. Was the weight of the evidence contrary to the jury’s verdict on all 

charges?

3. Did the court abuse its discretion at sentencing by improperly 

considering whether Appellant exercised his right to a jury trial?

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2 Appellant’s individual sentences each fall within the standard range of the 

sentencing guidelines.
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4. Did the court abuse its discretion in imposing an aggregate sentence 

of forty (40) to eighty (80) years’ confinement a sentence which is 

“unlikely to end during the defendant’s natural life span or [will] 

perpetually subject [the defendant] to the discretion of the Board of 

Probation and Parole”?

5. Did the court abuse its discretion in imposing an aggregate sentence 

of forty (40) to eighty (80) years’ confinement which was manifestly 

excessive?

Appellant’s Br. at 5.

I. Witness Testimony

In his first issue, Appellant argues that the trial court should have 

granted a mistrial when victim’s mother, a witness for the Commonwealth,

testified that Appellant remained silent after she asked Appellant if the 

allegations were true. Appellant’s Br. at 19. Appellant characterizes this 

testimony as demonstrating Appellant’s “tacit admission” of guilt and argues

he was entitled notice of it before trial pursuant to Pa.R.Crim.P. 531(b)(1).

Id.

We review the denial of a motion for a mistrial for an abuse of discretion.

Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa. Super. 2003). “A mistrial 

upon motion of one of the parties is required only when an incident is of such 

a nature that its unavoidable effect is to deprive the appellant of a fair and 

impartial trial.” Id. “It is within the trial court’s discretion to determine 

whether a defendant was prejudiced by the incident that is the basis of a 

motion for a mistrial.” Id.

Similarly, “[t]he admission of evidence is likewise committed to the 

sound discretion of the trial court and our review is for an abuse of discretion.”
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Commonwealth v. Parker, 104 A.3d 17, 21 (Pa. Super. 2014) (citation 

omitted). “An abuse of discretion occurs where the law is overridden or 

misapplied, or the judgment exercised is manifestly unreasonable, or the 

result of partiality, prejudice, bias, or ill will, as shown by the evidence or the 

record.” Commonwealth v. Adams, 104 A.3d 511, 517 (Pa. 2014) (OAJC)

(citation omitted). However, to the extent the question presents as “an issue 

involving a constitutional right, it is a question of law; thus, our standard of 

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

Baldwin, 58 A.3d 754, 762 (Pa. 2012).

Both the United States Constitution and the Pennsylvania Constitution 

protect every person against being compelled to be a witness against himself 

or herself. U.S. Const. amend. V; PA. CONST. article I, § 9. However, “a mere 

reference to pre-arrest silence does not constitute reversible error where the 

prosecution does not exploit the defendant’s silence as a tacit admission of 

guilt.” Adams, 104 A.3d at 512-13. Therefore, the right against selfincrimination is not burdened when the reference to silence is circumspect and 

does not create an inference of guilt. Id. at 517.

With respect to notice of specific evidence that must be provided to a 

defendant, Section 531(B)(1) of the Pennsylvania Rules of Criminal Procedure 

provides for the mandatory disclosure by the Commonwealth of the following:

(a) Any evidence favorable to the accused that is material either to guilt 

or to punishment, and is within the possession or control of the attorney 

for the Commonwealth;
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(b) any written confession or inculpatory statement, or the substance of 

any oral confession or inculpatory statement, and the identity of the 

person to whom the confession or inculpatory statement was made that 

is in the possession or control of the attorney for the Commonwealth.

Pa.R.Crim.P. 573(B)(1).

The Commonwealth must only disclose inculpatory statements that are 

in its attorney’s possession or control. Commonwealth v. Sullivan, 820 A.2d 

795, 804 (Pa. Super. 2003); see also Commonwealth v. Boczkowski, 846 

A.2d 75, 97 (Pa. 2004) (“the Commonwealth does not violate disclosure rules

when it fails to turn over evidence it does not possess and of which it is 

unaware.”)

Appellant argues that, although he was aware that victim’s mother 

would testify that Appellant told her to believe the victim, the additional 

unexpected statement about Appellant’s silence offered evidence of a “tacit 

admission” of guilt. Appellant’s Br. at 19. Appellant states that this additional 

testimony was “clearly very damning evidence” and that “[t]he defense is 

entitled to have all admissions or confessions [that] the Commonwealth 

intends to produce at trial.” Id. at 26-27. He concludes that had he known of 

mother’s additional testimony in advance, Appellant “may” have chosen to 

explore a non-trial disposition. Appellant’s Br. at 28. 

In addressing Appellant’s claim, the trial court found that the testimony 

to which Appellant objected “was not so inconsistent with the accompanying 

statements of which defense counsel was already in possession, namely that 

the defendant, when asked about the accusations, encouraged the victim’s 

mother to listen to her daughter and believe her daughter.” Tr. Ct. Op., 
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11/22/22, at 5. The trial court also found that the Commonwealth did not seek 

to elicit the testimony or exploit the testimony once offered. Id. Since 

Appellant did not request a curative instruction and agreed at trial that the

Commonwealth had not intentionally withheld the information, the trial court 

found that Appellant had waived any claim of prejudice and that the testimony 

was properly admitted. Id. 

We agree with the trial court’s analysis. Defense counsel was aware of 

the general scope of the mother’s testimony, which was to include her 

conversation with Appellant. In addition, the record supports the court’s 

finding that the statement was not in the Commonwealth’s possession, thus 

placing it outside of the scope of the Pa.R.Crim.P. 573(B)(1) disclosure rules.

N.T. Trial, 10/19/21, at 142. Moreover, as the court noted, the record 

indicates that the Commonwealth did not seek to exploit the statement as a 

tacit admission of guilt. N.T. Trial, 10/19/21, 141. Thus, the trial court did not 

abuse its discretion in denying Appellant’s motion for mistrial.

II. Weight of the Evidence

In his second issue, Appellant challenges the trial court’s denial of his 

post-trial motion wherein he argued that the weight of the evidence at trial 

was contrary to the jury’s verdict on all charges. Appellant’s Br. at 30. We 

affirm the decision of the trial court.

“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 the witnesses.” Commonwealth v. Talbert, 129 A.3d 536, 545 
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(Pa. Super. 2015) (citation omitted). The fact-finder is solely responsible for 

resolving contradictory testimony. Commonwealth v. Hopkins, 747 A.2d 

910, 917 (Pa. Super. 2000). It is well-settled that we cannot substitute our 

judgment for that of the trier of fact. Talbert, 129 A.3d at 546.

Moreover, appellate review of a weight claim is a review of the trial 

court’s exercise of discretion in denying the weight challenge raised in the 

post-sentence motion; this Court does not review the underlying question of 

whether the verdict is against the weight of the evidence. See id. at 545-46. 

“In 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.” Id. at 546 (citation omitted). As 

our Supreme Court has made clear, reversal is only appropriate “where the 

facts and inferences disclose a palpable abuse of discretion[.]” 

Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citations and 

emphasis omitted).

Appellant argues that the jury placed too much weight on the 

uncorroborated testimony of the victim about the sexual abuse, and not 

enough weight to alleged inconsistencies between her statements and those 

of other witnesses to the abuse. Appellant’s Br. at 33. 

The trial court, however, concluded that the jury was entitled to make 

its own credibility determinations and that Appellant had failed to establish 

the kind of injustice that would require a new trial. Tr. Ct. Op., 11/22/22, at 

6. The trial court noted that Appellant “has failed to explain why greater weight 
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should be given to the alleged discrepancies than all of the other facts 

presented at trial” and why “these few details about the years of ongoing 

abuse should have been given more weight than the victim’s consistent 

statements regarding her abuse.” Id. (emphasis in original).

Appellant essentially asks us to reassess the credibility of the victim and 

reweigh the testimony and evidence presented at trial. We cannot and will not 

do so. Our review of the record shows that the evidence is not tenuous, vague, 

or uncertain, and the verdict was not so contrary to the evidence as to shock 

the court’s conscience. We, thus, discern no abuse of discretion in the trial 

court’s denial of Appellant’s weight claim.

III. Sentencing Issues

In his third issue, Appellant argues that his sentence of 40-80 years is 

manifestly excessive. He also argues that the trial court abused its discretion 

by improperly considering his choice to go to trial as a sentencing factor. These 

arguments implicate the discretionary aspects of his sentence. 

A.

Challenges to the discretionary aspects of sentence are not appealable 

as of right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 

2015). Instead, an appellant must invoke this Court’s jurisdiction by (1) filing 

a timely notice of appeal; (2) properly preserving the issue at sentencing or 

in a motion to reconsider or modify the sentence; (3) complying with Pa.R.A.P. 

2119(f), which requires a separate section of the brief setting forth a concise 

statement of the reasons relied upon for allowance of appeal; and (4) 
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presenting a substantial question that the sentence appealed from is not 

appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b). Id.

In the instant case, Appellant met the first three criteria. We, thus, next 

determine if Appellant has raised a substantial question meriting our review 

of his sentence.

“A substantial question exists only when the appellant advances a 

colorable argument that the sentencing judge’s actions were either: (1) 

inconsistent with a specific provision of the Sentencing Code; or (2) contrary 

to the fundamental norms which underlie the sentencing process.” 

Commonwealth v. Summers, 245 A.3d 686, 692 (Pa. Super. 2021) (citation 

omitted). This Court has found the existence of a substantial question where 

the defendant asserts that the sentencing court considered an impermissible 

sentencing factor. Commonwealth v. Macias, 968 A.2d 773, 776 (Pa. Super. 

2009). 

In asserting that the sentencing court considered an improper 

sentencing factor, i.e., Appellant’s exercise of his right to a trial, Appellant has 

raised a substantial question.3 We, thus, address its merits.

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3 With respect to Appellant’s claim that the sentence was manifestly excessive, 

we note that a bald allegation of manifest excessiveness does not raise a 

substantial question. Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. 

Super. 2013). Accordingly, Appellant’s manifest excessiveness argument, 

standing alone, does not raise a substantial question. In addition, Appellant 

bases his manifest excessiveness argument on citations to several studies 

concerning the lifespan of Hispanic males. Appellant’s Br. at 39-42. While age 

is a factor a sentencing court may consider in rendering a sentence, as the 

(Footnote Continued Next Page)
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B.

Our review of Appellant’s sentence is informed by well-settled legal 

principles. “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.” Commonwealth v. Hyland, 875 A.2d 1175, 

1184 (Pa. Super. 2005) (citation omitted). “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.” 

Id. (citation omitted).

The Sentencing Code requires that, in fashioning an individualized 

sentence, the sentencing court impose a sentence that is consistent with “the 

protection of the public, the gravity of the offense as it relates to the impact 

on the life of the victim and on the community, and the rehabilitative needs 

of the defendant.” 42 Pa.C.S. § 9721(b). “In every case in which the court 

imposes a sentence for a felony or misdemeanor . . . the court shall make as 

a part of the record, and disclose in open court at the time of sentencing, a 

statement of the reason or reasons for the sentence imposed.” Id. In 

particular, the court should refer to, inter alia, the defendant’s age, personal 

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trial court notes here, there is no requirement for it to consider these studies 

as a matter of law in fashioning a sentence. Tr. Ct. Op. at 9-10. 42 Pa.C.S. § 

9721(b).
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characteristics, and potential for rehabilitation. Commonwealth v. Griffin, 

804 A.2d 1, 10 (Pa. Super. 2002).

The right to trial is protected by the U.S. Constitution and the 

Pennsylvania Constitution. U.S. Const. amend. VI; PA. CONST. article I, § 9. 

If it reasonably appears from the record that the trial court imposed a harsher 

sentence because the defendant exercised his right to trial instead of pleading 

guilty, “it is sufficient to render a sentence invalid.” Commonwealth v. 

Bethea, 379 A.2d 102, 107 (Pa. 1977). If the defendant is penalized during 

sentencing for exercising his or her constitutional rights, that impermissible 

factor cannot be offset by also considering permissible factors. 

Commonwealth v. Smith, 673 A.2d 893, 896 (Pa. 1996). 

Here, the court considered the attitude of the defendant, the threat 

posed to the public, the impact on the victim, and the lack of remorse shown 

by the defendant. Significantly, the court also noted that “[t]he defendant 

here did not plead guilty or in any way seek to spare further anguish or 

embarrassment on a young woman victim, but made her testify and forced 

her to relive the assault, not only in her mind, but in front of about 25 people 

. . . .” N.T. Sentencing at 49. 

Appellant asserts that the court abused its discretion in considering 

Appellant’s exercise of his right to a jury trial as a factor in sentencing 

Appellant. Appellant’s Br. at 37. Appellant emphasizes his constitutional right 

to a trial by jury and observes that “the vast majority of sexual offense cases 
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will require a complaining witness to testify in order for the Commonwealth to 

meet its burden of proof.” Id. at 38.

In addressing Appellant’s challenge, the trial court stated that it had 

considered various factors in fashioning an appropriate sentence and that “in 

context, the statements relate not to the Defendant’s right to a jury trial but 

give recognition to the substantial impact the offenses for which the Defendant 

was found guilty have had upon the victim.” Tr. Ct. Op. at 7.

We conclude that the sentencing court’s explanation does not ameliorate 

the fact that while reviewing the sentencing factors, it considered Appellant’s 

exercise of his right to a jury trial as one of its reasons for imposing the 

sentence that it did. The court explicitly stated “the defendant here did not 

plead guilty or in any way seek to spare further anguish or embarrassment on 

a young woman victim, but made her testify and forced her to relive the 

assault . . . .” N.T. Sentencing at 49. As our precedential case law provides, 

reliance on an improper factor that affects a defendant’s constitutional right

cannot be offset by the court’s consideration of permissible factors. Bethea, 

379 A.2d at 107; Smith, 673 A.3d at 896.

We, therefore, vacate Appellant’s judgment of sentence and remand for 

a new sentencing hearing. In all other respects, we affirm.

Judgment of Sentence vacated. Case remanded for a new sentencing 

hearing. Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/15/2023