Com. v. Caraballo, J. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JORGE LUIS CARABALLO :
:
Appellant : No. 1111 MDA 2022
Appeal from the Judgment of Sentence Entered July 15, 2022
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0006259-2019
BEFORE: KUNSELMAN, J., McCAFFERY, J., and COLINS, J.
MEMORANDUM BY COLINS, J.: FILED: AUGUST 3, 2023
Jorge Luis Caraballo appeals from the judgment of sentence imposed
following a non-jury trial in which he was convicted of four counts of
involuntary deviate sexual intercourse with a child, one count of rape of a
child, two counts of unlawful contact with a minor, one count of incest, two
counts of indecent assault, two counts of corruption of minors, and one count
of criminal use of a communication facility.1 For these offenses, Caraballo was
sentenced to an aggregate forty-eight-to-ninety-six-year term of
incarceration. Contemporaneous to this appeal, Caraballo’s counsel has filed
a petition to withdraw from representation and, additionally, has filed a
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 Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S. § 3123(b); 18 Pa.C.S. § 3121(c); 18 Pa.C.S. § 6318(a)(1);
18 Pa.C.S. § 4302(b)(1); 18 Pa.C.S. § 3126(a)(7); 18 Pa.C.S. §
6301(a)(1)(ii); 18 Pa.C.S. § 7512, respectively.
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corresponding brief pursuant to Anders v. California. See 386 U.S. 783(1967). After thoroughly reviewing the record, we affirm Caraballo’s judgment
of sentence and further grant counsel’s petition to withdraw.
As gleaned from the testimony adduced at trial, until October 29, 2019,
Caraballo resided with his wife, Amanda Caraballo, his biological son, E.C.,
born in 2008, and Amanda’s biological daughter, J.R., born in 2011. See N.T.,
12/9/21, at 10-11, 33-34, 43, 87 (establishing, further, that in addition to
those four, several other people lived at this house). The house featured a
“Ring” doorbell, which allowed for Caraballo to view, via a phone application,
“what was happening at the front door[.]” Id., at 13. In addition, there were
other cameras set up, accessible via other phone applications: “one on the
outside of the house right above the [side] door, and then … one on the
inside[.]” Id., at 14-16.
At trial, J.R. was the first victim to testify. Beginning when she was in
first or second grade, Caraballo “started doing bad things to [her].” Id., at
48. The first incident J.R. could remember involved Caraballo repeatedly
kissing her on the cheek when they were on the living room couch. See id.,
at 49. A second incident, sometime later, featured Caraballo again kissing J.R.
on the cheek. See id., at 50-51. This time, however, he also kissed her on
the lips and further touched her ribs. See id., at 51. The event took place in
J.R.’s bedroom, and Caraballo told her not to tell anybody about what had
happened. See id.
J.R. remembered yet another interaction between her and Caraballo
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when she was six and one-half years old. See id., at 52. On that date and in
Caraballo’s bedroom, Caraballo started kissing her on the cheek and on her
clothing. See id., at 52. Eventually, Caraballo took all of her clothing off. See
id., at 53. Then, “he started doing really bad stuff to [her].” Id. Specifically,
after he unzippered his jeans, J.R. saw Caraballo’s genitals. See id. After that,
Caraballo’s penis “touch[ed]” J.R.’s vagina. See id., at 54. J.R. conveyed that
Caraballo stuck his penis inside of her while she was laying on her back. See
id., at 54-55. Caraballo was wearing a condom at the time. See id., at 55.
J.R. also indicated that “white clear stuff” came out of Caraballo’s penis. See
id., at 56. Like the prior incident, Caraballo told J.R. not to tell anybody. See
id.
On a different occasion in yet another room of the house, Caraballo
touched J.R.’s breasts over her shirt. See id., at 57. J.R. testified that
Caraballo’s penis was pressed against J.R. See id. At some point, Caraballo’s
penis went inside of her anus.2 See id., at 58. Caraballo used a condom, and
“white stuff” came out of his penis. Id., at 59.
Broadly, J.R. recounted that Caraballo’s penis went into her vagina “[a]
lot.” Id., at 60. Caraballo did not use a condom every time. See id., at 61.
J.R. also stated that Caraballo stuck his penis into her anus “[a] couple times.”
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2 The nomenclature used by both J.R. and E.C. throughout their testimony in
reference to this anatomical portion of their bodies is “butt”; however, their
testimonial use of prepositions such as “into” fairly suggests a more specific
meaning, i.e., anus, which we have utilized for purposes of clarity and
precision.
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Id. Most of the time, “white stuff” would come out of his penis. Id., at 62.
Additionally, Caraballo stuck his penis into J.R.’s mouth a couple of times. See
id. J.R. tasted the substance that came out of Caraballo’s penis, indicating
that either Caraballo’s ejaculate or his penis tasted “[s]our.” Id., at 63.
To perpetrate these acts, Caraballo would find times when the rest of
the household was at school or work. See id., at 64. Caraballo would close
and lock the door of whatever room he and J.R. were in, and if someone came
home, Caraballo would tell J.R. “to get dressed fast and get out.” Id. Caraballo
would look at the cameras that were set up around the house to determine if
anyone else was present at the house when the assaults occurred. See id.
J.R. first told somebody about what Caraballo had been doing to her when she
was eight and one-half years old. See id.
E.C. was the second victim to take the stand. E.C. first started
experiencing “bad things” at the hands of Caraballo when he was nine years
old. Id., at 90. E.C. recalled a time when Caraballo came up behind him,
dropped the towel he had been wearing, and then, completely nude, said to
E.C., “this is what a grown man looks like.” Id., at 90-91. After that, Caraballo
“came close to [him], … made [him] get on [his] knees, and then he made
[him] suck [Caraballo’s] private part” with his mouth. Id., at 91. Caraballo
then proceeded to stick his penis in E.C.’s anus. See id., at 92. Caraballo “told
[E.C.] it was a normal father and son thing.” Id., at 93. Caraballo instructed
E.C. not to tell anybody what had happened. See id., at 94.
E.C. then recalled Caraballo sticking his penis into E.C.’s anus when
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Caraballo was suspended from work. See id., at 94. Caraballo “made [E.C.]
suck his private part.” Id., at 95. E.C. also described Caraballo’s use of
cameras around the house. Caraballo would “turn on the cameras to make
sure no one was coming[.]” Id., at 97.
E.C. would go on to describe a multitude of situations where Caraballo
would force him to engage in oral and anal sex. See, e.g., id., at 98. Caraballo
asked E.C. if he was “scared to hold [Caraballo’s] private part.” Id., at 97.
When E.C. failed to clean his room one time, Caraballo “took [him] in [his]
room and [Caraballo] bent [him] over [his] bed and he put his private part in
[E.C.’s anus].” Id., at 98-99.
E.C. also recalled an incident where he had a milkshake. See id., at
100. Caraballo “called [him] in his room and then he told [him] to suck his
private part, but before [E.C.] did” he was instructed to “drink some” of that
milkshake. Id. Although E.C. told Caraballo that the milkshake tasted weird,
eventually throwing it away, Caraballo “still made [him] suck his private part.”
Id., at 101.
E.C. then discussed a time where he physically got on top of Caraballo.
That day, Caraballo first told him “to suck his private part.” Id., at 102.
However, thereafter, Caraballo’s private part went into his anus. See id. E.C.
stated that it felt different when he was on top of Caraballo, hurting more.
See id.
Caraballo got into a bathtub with E.C. the one time, making E.C. suck
his private part on that occasion, too. See id., at 104. Caraballo then “put his
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private part in [E.C.’s anus].” Id., at 105. On a camping trip, which involved
the two of them sharing a tent, Caraballo “bent [E.C.] over and then put his
private part in [his anus].” Id., at 106.
Caraballo would, at times, require E.C. to wear a wrestling outfit. When
E.C. wore this clothing, Caraballo stuck “his private part in [E.C.’s anus].” Id.,
at 110. Caraballo also “put his private part in [E.C.’s] mouth.” Id., at 111.
Caraballo would wear pajamas with a hole in them. See id. Caraballo “would
pull his private part out of the hole and … put it in [E.C.’s anus].” Id., at 112.
Caraballo also had a propensity to utilize sex toys in his engagements
with E.C., sticking them up E.C.’s anus. See id., at 115. Finally, E.C. specified
that, throughout many of these assaults, Caraballo would “kiss or lick” his
face. Id., at 117.
The matter proceeded to a two-day bench trial, which involved, inter
alia, hearing the testimony of five of the Commonwealth’s witnesses, including
J.R. and E.C. Caraballo was ultimately found guilty of the aforementioned
crimes and, just prior to sentencing, was adjudicated a sexually violent
predator (“SVP”).
Thereafter, Caraballo filed a timely notice of appeal. As previously
mentioned, Caraballo’s counsel has filed an Anders brief before this Court
and, too, has petitioned to withdraw from representation. In that brief, counsel
presents four discrete bases in which Caraballo could appeal, but ultimately
concludes that each is frivolous. We note that Caraballo has not provided any
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pro se response to counsel’s filing, and there is no indication that any
independent counsel has filed a brief on Caraballo’s behalf.
Prior to our substantive consideration of the issues contained in
counsel’s Anders brief, we must consider whether counsel has adequately
adhered to the rigid dictates governing such a withdrawal request. See
Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010). Specifically,
an Anders brief evidences counsel’s belief that the corresponding appeal is
frivolous. Inherent in that belief is counsel's desire to withdraw from
representation, which, based on our well-settled case law, requires counsel
to:
(1) petition the [C]ourt for leave to withdraw stating that after
making a conscientious examination of the record, counsel has
determined the appeal would be frivolous; (2) file a brief referring
to any issues that might arguably support the appeal, but which
does not resemble a no-merit letter; and (3) furnish a copy of the
brief to the defendant and advise him of his right to retain new
counsel, proceed pro se, or raise any additional points [counsel]
deems worthy of this Court’s attention.
Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)
(citation omitted). In Commonwealth v. Santiago, our Supreme Court
expounded upon the necessary components of an Anders brief, directing
counsel, in that brief, to:
(1) provide a summary of the procedural history and facts, with
citations to the record;
(2) refer to anything in the record that counsel believes arguably
supports the appeal;
(3) set forth counsel’s conclusion that the appeal is frivolous; and
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(4) state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of record,
controlling case law, and/or statutes on point that have led to the
conclusion that the appeal is frivolous.
978 A.2d 349, 361 (Pa. 2009). If there is substantial compliance with these
Anders precepts, then this Court must “conduct a simple review of the record
to ascertain if there appear on its face to be arguably meritorious issues that
counsel, intentionally or not, missed or misstated.” Commonwealth v.
Dempster, 187 A.3d 266, 272 (Pa. Super. 2018) (en banc).
We conclude that counsel has satisfactorily complied with Anders. First,
counsel’s petition indicates that there has been “a conscientious examination
of the record[,]” which led to counsel’s conclusion “that a direct appeal would
be frivolous.” Motion to Withdraw as Counsel, ¶ 3. Second, counsel’s brief,
which is fifty-eight pages in length, replete with an extensive fact and
procedural history section, and bolstered by a well-detailed overview of the
issues that counsel has identified as frivolous, unquestionably conforms to the
four requirements, established in Santiago, supra. Third, appended to the
Anders brief is a copy of a letter from counsel, sent to Caraballo,
demonstrating counsel’s clear intention to withdraw from representation and
apprising Caraballo of his right to either seek new counsel or proceed pro se
to file additional claims. See Anders Brief, Ex. C. Accordingly, as the
requirements illuminated in Anders and its progeny have been met, we
consider the “frivolous” claims that counsel has brought forth on Caraballo’s
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behalf. Thereafter, we conduct an independent review of the record to
ascertain whether, in fact, the present appeal is wholly unmeritorious.
The Anders brief delves into four issues: (1) the sufficiency of evidence
at each conviction; (2) the weight of evidence at each conviction; (3) the
legality and discretionary aspects of Caraballo’s sentence; and (4) the
sufficiency of evidence utilized by the court when it adjudicated Caraballo an
SVP. See id., at 23. We address these claims in turn.
First, as to sufficiency of the evidence, our standard of review is as
follows:
The standard we apply in reviewing the sufficiency of 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 our judgment for that of
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth may 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
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
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. Lambert, 795 A.2d 1010, 1014–15 (Pa. Super. 2002)
(citations omitted).
The Anders brief segregates and discusses Caraballo’s convictions as
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to those that involved J.R. and those that involved E.C. Through our intensive
review of the notes of testimony and when juxtaposed against the relevant
statutory and decisional case law at each convicted offense, we conclude that
there was sufficient evidence to find Caraballo guilty. Specifically, the record
is replete with testimonial evidence establishing Caraballo’s guilt as to, inter
alia, involuntary deviate sexual intercourse, rape, and, because E.C. is
Caraballo’s biological son, incest. Therefore, any challenge to the sufficiency
of evidence in this case would be wholly frivolous.
Simultaneous with his sufficiency section, Caraballo discusses the
validity of presenting a challenge to weight of the evidence at each of his
offenses. A weight-of-evidence challenge must be preserved either in a post-
sentence motion, a written motion before sentencing, or orally prior to
sentencing. See Pa.R.Crim.P. 607(A)(1)-(3); see also id., cmt. (establishing
that “[t]he purpose of this rule is to make it clear that a challenge to the
weight of the evidence must be raised with the trial judge or it will be waived”).
If a weight challenge is not presented to the trial court through one of the
aforementioned methods, it is waived. See Commonwealth v. Burkett, 830
A.2d 1034, 1037 (Pa. Super. 2003). Caraballo did not file a post-sentence
motion, and through our own review of the record, we have not uncovered
any indication that such a claim has been adequately preserved. Accordingly,
any weight challenge would be frivolous since it was not properly preserved
at the lower court level. See Commonwealth v. Cox, 231 A.3d 1011, 1016
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(Pa. Super. 2020) (finding that this Court may not address issues that were
not properly preserved in the trial court).
On potential issues associated with Caraballo’s sentencing, the Anders
brief first alludes to whether any of his convictions would merge for sentencing
purposes. See 42 Pa.C.S. § 9765 (prohibiting the merger of crimes at
sentencing “unless the crimes arise from a single criminal act and all of the
statutory elements of one offense are included in the statutory elements of
the other offense”). At sentencing, the court considered the question of
merger and ultimately found it to be inapplicable given the number of discrete
incidents of sexual assault that J.R. and E.C. delved into when contrasted with
the elements of his convictions. See Sentencing Hearing, 7/15/22, at 39-41,
43. The Anders brief concludes that such a determination was appropriate as
the statutory elements varied or featured different additional elements
predicated on the victims’ testimonies, and after our own review of the
statutory elements of each of his convictions, we see no basis to contradict
the lower court’s determination. As such, any challenge would be frivolous.
Continuing in the domain of sentencing, the Anders brief delves into
whether Caraballo could proffer a nonfrivolous claim as to the discretionary
aspects of his sentence. The Anders brief concedes that “there was no
preservation of a sentencing claim at sentencing or in a post-sentence
motion.” Anders Brief, at 49. Resultantly, “any challenge to the discretionary
aspects of sentencing has been waived.” Id.
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We employ the following standard of review for discretionary aspects of
sentencing claims:
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. 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.
The right to appellate review of the discretionary aspects of a
sentence is not absolute, and must be considered a petition for
permission to appeal. An appellant must satisfy a four-part test to
invoke this Court’s jurisdiction when challenging the discretionary
aspects of a sentence.
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal; (2) whether the issue
was properly preserved at sentencing or in a motion to reconsider
and modify sentence; (3) whether appellant’s brief has a fatal
defect[, see 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.
Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014) (citations
omitted).
We have reviewed the record and have failed to find any place at which
Caraballo preserved this issue for appellate review. Stated differently,
Caraballo did not challenge the discretionary aspects of his sentence via post-
sentence motion or concomitant with the lower court’s imposition of his
sentence. Because we have held that the failure to properly preserve the issue
at the lower court level prevents this Court from having jurisdiction to review
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such a claim, his discretionary sentencing challenge is necessarily waived.
Through waiver, any claim pursuing the same would have been frivolous given
our lack of ability to review such a contention on appeal.3
Finally, the Anders brief presents the question of whether a challenge
to Caraballo’s SVP determination would be frivolous. Our standard of review
in this domain is as follows:
The determination of a defendant’s SVP status may only be made
following an assessment by the [Sexual Offenders Assessment
Board (“SOAB”)] and hearing before the trial court. In order to
affirm an SVP designation, we, as a reviewing court, must be able
to conclude that the fact-finder found clear and convincing
evidence that the individual is a sexually violent predator. As with
any sufficiency of the evidence claim, we view all the evidence and
reasonable inferences therefrom in the light most favorable to the
Commonwealth. We will reverse a trial court’s determination of
SVP status only if the Commonwealth has not presented clear and
convincing evidence that each element of the statute has been
satisfied.
The standard of proof governing the determination of SVP status,
i.e., “clear and convincing evidence,” has been described as an
“intermediate” test, which is more exacting than a preponderance
of the evidence test, but less exacting than proof beyond a
reasonable doubt.
***
The clear and convincing standard requires evidence that is “so
clear, direct, weighty, and convincing as to enable the [trier of
fact] to come to a clear conviction, without hesitancy, of the truth
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3 We note that the Anders brief also discusses Caraballo’s incarceration term,
amounting to forty-eight to ninety-six years, and remarks that “if the [c]ourt
imposed guideline sentences and imposed them consecutively, [it] could have
imposed a minimum sentence of … 130 years.” Anders Brief, at 52. Instead,
“[t]he sentencing court’s imposition of [forty-eight] years minimum is an
extreme downward departure.” Id.- 13 -
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of the precise facts [in] issue.”
Commonwealth v. Fuentes, 991 A.2d 935, 941–42 (Pa. Super. 2010) (en
banc) (citations omitted).
The Anders brief frames the SVP issue in the context of whether
Caraballo “possessed a mental abnormality which causes a likelihood to
reoffend.” Anders Brief, at 54; see also 42 Pa.C.S. § 9799.12 (defining
sexually violent predator as one who, in addition to being convicted at a
specifically enumerated offense, possesses “a mental abnormality or
personality disorder that makes the individual likely to engage in predatory
sexually violent offenses[]”).
Our review of the SVP hearing transcript confirms that any challenge to
his SVP adjudication would be frivolous. At the hearing, Dr. Robert Stein
communicated that he had diagnosed Caraballo with pedophilic disorder, other
specified paraphilic disorder (specifically involving incest, non-consent, and
fetish), and antisocial personality disorder. See SVP Hearing, 7/15/22, at 17-
18. Additionally, Dr. Stein’s testimony, predicated on his analysis of both the
facts underpinning both Caraballo and the criminal acts that he committed,
giving specific attention to the fifteen assessment-related factors outlined at
42 Pa.C.S. § 9799.24, established within a reasonable degree of scientific
certainty that Caraballo was likely to reoffend. See, e.g., id., at 19-20 (“I
think when you look at the course of conduct with both children, you would
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not want the defendant to be in the company of children unsupervised for the
rest of his life.”).
Notwithstanding the fact that Caraballo was permitted to raise this
issue, for the first time, before this Court, see Commonwealth v. Hitner,
910 A.2d 721, 728 n.8 (Pa. Super. 2006) (identifying that SVP sufficiency
claims may be raised “for the first time on appeal”) (citation omitted), we
agree that any challenge to Caraballo’s SVP determination, viewed in a light
most favorable to the Commonwealth, would have been frivolous as the
voluminous evidence presented to the lower court as to Caraballo’s sexually
violent nature was unquestionably clear and convincing. See, e.g., SVP
Hearing, 7/15/22, at 11-21.
In accordance with Anders, we have independently reviewed the record
to ascertain the existence of other non-frivolous issues. Our review has
uncovered nothing legally viable for Caraballo to have pursued on appeal.
Therefore, as we are unable to find any non-frivolous issues and further
see no merit to the potential issues illuminated in counsel’s Anders brief, we
grant the petition to withdraw and affirm Caraballo’s judgment of sentence.
Petition to withdraw from representation granted. Judgment of sentence
affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/03/2023
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