Com. v. Fratangeli, D. ( 2022 )

J-A20002-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DOMINIC JOHN FRATANGELI :
:
Appellant : No. 148 EDA 2022
Appeal from the Judgment of Sentence Entered July 7, 2021
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0003622-2018
BEFORE: BENDER, P.J.E., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 1, 2022
Appellant, Dominic John Fratangeli, appeals from the judgment of
sentence of an aggregate term of 4 to 10 years’ incarceration, imposed after
he was convicted of rape by forcible compulsion, 18 Pa.C.S. § 3121(a)(1);
involuntary deviate sexual intercourse by forcible compulsion, 18 Pa.C.S. §
3123(a)(1); sexual assault, 18 Pa.C.S. § 3124.1; and two counts of
aggravated indecent assault, 18 Pa.C.S. § 3125(a)(1) and (2). After careful
review, we affirm.
Appellant was convicted of the above-stated offenses following a three-
day jury trial in March of 2021, based on evidence that he had oral and vaginal
sex with an adult, female victim without her consent and by forcible
compulsion. On July 7, 2021, he was sentenced to the aggregate term set
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* Retired Senior Judge assigned to the Superior Court.
J-A20002-22
forth supra. He filed a timely post-sentence motion, which the court denied.
Appellant then filed a timely notice of appeal, and he complied with the trial
court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The court filed its Rule 1925(a) opinion on March
10, 2022.
Herein, Appellant states five issues for our review:
I. Whether the evidence was insufficient to support the convictions
for rape, involuntary deviate sexual intercourse, and aggravated
indecent assault (forcible compulsion) because the
Commonwealth failed to prove the element of “forcible
compulsion” beyond a reasonable doubt for each offense.
II. Whether the findings of guilt on the charges of rape,
involuntary deviate sexual intercourse, and aggravated indecent
assault (forcible compulsion) are against the weight of the
evidence where the testimony of the complaining witness was
vague and lacked specificity regarding “forcible compulsion.”
III. Whether the trial court abused its discretion by precluding
Appellant from publishing a portion of the Sexual Assault Nurse
Examiner (“SANE”) report, which related to injuries to the
complaining witness, to the jury. Whether the trial court further
abused its discretion by not allowing the SANE report to be
provided to the jury during deliberations.
IV. Whether the trial court committed an error of law and/or
abused its discretion when the court gave the jury an instruction
on “hue and cry,” which instructed the jury that a prompt
complaint is circumstantial evidence of the sexual assault itself as
well as “significant circumstantial support” of the victim’s
testimony that she was sexually assaulted.
V. Whether the trial court improperly considered Appellant’s
silence at sentencing regarding the criminal charges as failure to
accept responsibility and show remorse.
Appellant’s Brief at 5-6.
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In assessing Appellant’s issues, we have reviewed the certified record,
the briefs of the parties, and the applicable law. Additionally, we have
examined the 76-page, well-reasoned opinion of the Honorable Analisa
Sondergaard of the Court of Common Pleas of Chester County. We conclude
that Judge Sondergaard’s comprehensive opinion accurately disposes of the
issues presented by Appellant. See Trial Court Opinion, 3/10/22, at 2-53
(rejecting Appellant’s argument that the Commonwealth’s evidence was
insufficient to prove the element of forcible compulsion); 1 id. at 53-56 (finding
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1We add to the court’s analysis of this issue a discussion of Appellant’s reliance
on Commonwealth v. Berkowitz, 641 A.2d 1161 (Pa. 1994). There,
Berkowitz “push[ed the complainant] onto [a] bed, … removed her
undergarments from one leg[,]” and “then penetrated her vagina with his
penis.” Id. at 1163. Before the assault, Berkowitz locked the door of the
room that he and the victim were in. Id. at 1164. However, the victim “never
attempted to go to the door or unlock it.” Id. Berkowitz also did not use his
hands to physically “restrain[] her in any manner during the actual
penetration….” Id. Our Supreme Court found these facts insufficient to prove
that Berkowitz used forcible compulsion. Id. Appellant contends that the
present facts mirror those in Berkowitz and, thus, we must reach the same
conclusion as our Supreme Court did in that case.
We disagree. Here, unlike in Berkowitz, the evidence established that
Appellant used physical force on the victim. For instance, the victim testified
that, as she sat on the couch, Appellant “pulled [her] down so that … [her]
behind was … at the edge of the sofa.” N.T. Trial, 3/16/21, at 64. Appellant
“started pulling at [her] pants” and she tried several times to pull them back
up while telling him to stop. Id. at 65, 67. Nevertheless, Appellant “grabbed
the ankles of [her] pants and pulled them off.” Id. Appellant then performed
oral sex on the victim as she “hit him on the shoulders, … trying to get him to
retreat….” Id. at 68. Appellant then “grabbed [her] hands” and “pulled [her]
into a standing position[,]” after which he “kind of pivoted [her] body and put
[her] down on the floor of the living room.” Id. at 69. As Appellant held her
legs, he penetrated her vagina with his penis. Id. at 70. The victim testified
(Footnote Continued Next Page)
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meritless Appellant’s claim that the jury’s verdict was contrary to the weight
of the evidence); id. at 61-64 (rejecting Appellant’s argument that the court
abused its discretion by not publishing to the jury a portion of the SANE report
or allowing that report to be provided to the jury during deliberations); id. at
64-69 (concluding that Appellant’s challenge to the ‘hue and cry’ jury
instruction is meritless);2 and id. at 69-72 (rejecting Appellant’s claim that
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that she had told Appellant no “[c]ountless” times and had just “given up.”
Id. at 71. During a subsequently-recorded phone call between the victim and
Appellant, he seemingly conceded that he had “ripped [her] pants off,”
responding to her statement that he did so by apologizing and saying, “I
thought you wanted it.” Exhibit C-26, 3/17/21, at 5. When the victim asked
Appellant what “made [him] think [she] wanted it” when she “was screaming
no[,]” Appellant said that he “thought [she] was joking” and apologized. Id.
We conclude that this evidence distinguishes the present case from
Berkowitz and supports the trial court’s conclusion that the evidence was
sufficient to prove Appellant used forcible compulsion.
2 In regard to Appellant’s jury-instruction challenge, he contends that “[t]here
is no legal precedent that permits a jury instruction on ‘hue and cry’” and that
the instruction “was particularly problematic in two aspects.” Appellant’s Brief
at 41. Specifically, Appellant argues that the instruction “improperly allowed
the jury to consider [the victim’s] prompt complaint as circumstantial evidence
that the underlying assault occurred[,]” and it “bolstered the credibility of [the
victim] by stating that the prompt complaint constituted ‘strong circumstantial
evidence’ for [her] testimony that she was assaulted.” Id. at 42.
Notably, Appellant did not immediately object to the at-issue instruction when
it was given. See N.T. Trial, 3/17/21, at 213-14. When he did object, after
the instructions were finished and the jury was excused from the courtroom,
he did not offer any specific grounds for challenging the instruction. Id. at
223. Instead, defense counsel simply stated, “Your Honor, just note my
objection to the hue and cry instruction that was given regarding a prompt
complaint.” Id. Appellant points out that the court conducted a meeting with
the parties “regarding the jury instructions prior to closing arguments.”
Appellant’s Brief at 15 (citing N.T. Trial, 3/17/21, at 110). However, that
(Footnote Continued Next Page)
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the court improperly considered his silence at sentencing as a failure to accept
responsibility or show remorse). Accordingly, we adopt Judge Sondergaard’s
opinion as our own and affirm Appellant’s judgment of sentence for the
reasons set forth therein.3
Judgment of sentence affirmed.
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meeting “was not held on the record” and, thus, we cannot discern whether
Appellant raised the specific challenges to the jury instruction that he presents
on appeal. Id. Moreover, Appellant did not raise these claims in his Pa.R.A.P.
1925(b) statement. Therein, Appellant simply quoted the at-issue instruction,
prefaced by a statement that “the trial court committed an error of law and/or
abused its discretion when the court instructed the jury as follows[.]” See
Pa.R.A.P. 1925(b) Statement, 1/3/22, at 2 ¶ 5.
Due to Appellant’s failure to specifically object to the ‘hue and cry’ instruction
on the record or raise his appellate claims in his Rule 1925(b) statement, the
trial court did not address those arguments at the time of trial, or in its Rule
1925(a) opinion. As such, we conclude they are waived. See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for the
first time on appeal.”). Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the
Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.”). To the extent the court generally discusses
the basis for its decision to provide a ‘hue and cry’ jury instruction, we discern
no abuse of discretion in its rationale. Thus, we adopt it herein.
3 The court addresses two other issues in its opinion that Appellant has not
raised on appeal. See id. at 56-61 (finding meritless Appellant’s allegation
that the court abused its discretion by precluding him from cross-examining
the victim regarding her medications and mental health diagnosis); id. at 72-
76 (rejecting Appellant’s claim that his sentence is illegal because his two
counts of aggravated indecent assault should have merged with his
convictions for rape, involuntary deviate sexual assault, and sexual assault).
We do not adopt the court’s analysis of these claims, as Appellant has
abandoned them herein.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/1/2022
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Circulated 10/06/2022 11:57 AM
Circulated 10/06/2022 11:57 AM