Com. v. Dietrich, C. ( 2021 )

J-A27025-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARLOS DIETRICH :
:
Appellant : No. 1797 EDA 2019
Appeal from the Judgment of Sentence Entered January 3, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003887-2017
BEFORE: STABILE, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY NICHOLS, J.: FILED JUNE 17, 2021
Appellant Carlos Dietrich appeals from the judgment of sentence
imposed following his convictions for promoting prostitution, corruption of a
minor, involuntary servitude, trafficking in minors, kidnapping, and three
counts of conspiracy.1 Appellant challenges the exclusion of evidence relating
to prior allegations of sexual conduct by the victim, the sufficiency and weight
of the evidence, the trial court’s jury instructions, and his sentence. We
affirm.
The trial court summarized the underlying facts of this matter as follows:
At trial, in her very thorough and highly credible and compelling
testimony, the [victim], U.P.T., vividly described all of the relevant
events. She testified that she had first met [Appellant], who until
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 5902(b)(1), 6301(a)(1)(i), 3012(b), 3011(b), 2901(a)(2), and
903, respectively.
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the time of his arrest, she knew only as Ten-Ten or Tim-Tim, while
she was a 16-year-old tenth grade student at a store near the
high school she had been attending. At first, they were merely
casual acquaintances. This relationship gradually evolved into a
closer more personal one after he had wooed her romantically.
She related that on one Friday night, while she was spending the
night at the home of her best friend, [D.R.], she texted [Appellant]
and asked him to get her some liquor for [D.R.’s] birthday party
the next evening; he said he would do so but it had to be later.
When he picked her up at [D.R.’s] home the next day, he had a
man with him called “Money” and, instead of taking her to the
store to get some liquor as she expected, they transported her in
a vehicle to the Roosevelt Inn.
Along the way, [Appellant] repeatedly told her that she should
have sex with other people to “Make money for us.” She had
initially responded that she “didn’t feel comfortable with it because
of past situations” she had been in; at first he asked her mildly
but over time he became more forceful. They slept together for a
while when they arrived at the Inn after which he took her to a
store and bought her something to eat; after that he picked up a
woman named “Bacardi.” They took her to a store and had her
nails done and bought her bras and panties and went back to the
Roosevelt Inn.
Once back at the Roosevelt Inn, [the victim] was kept isolated in
a [rented] room . . . where [Appellant and his cohorts] repeatedly
cajoled [the victim] into agreeing to working as a prostitute for
them. Bacardi took pictures of her wearing the underwear they
bought for her and posted them on Back Page, a website for
soliciting escorts and prostitutes, giving her the trade name
Diamond; though neither of them actually threatened to physically
harm her, she cooperated with the venture for fear that if she
refused or sought any assistance from anyone it might result in
physical injury to herself and anyone who tried to render her
assistance. This fear was aroused by the angry demeanor they
had displayed whenever she tried to express her disapproval or
reluctance of the situation.
Appellant and his cohorts gave this sixteen-year-old liquor and
marijuana, purportedly to calm her down. After she became high,
she began prostituting herself for them. While she could not recall
all details because she had been high and drunk all the time; she
concretely related the process of how either Ten-Ten, Bacardi or
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Money arranged “dates” for her. She stated that Bacardi had
remained close by all of them “for her protection.” She
remembered quite clearly the sexual acts that she had performed
and the fact that she had been required to hand over all the
proceeds for those sexual acts performed to them.
At one point, she described receiving a text from her friend [D.R.]
asking where she was because she had not appeared at school or
responded to her inquiry of her whereabouts. She did not reply
at first, but later texted her back and told her she was fine and
expected to be back when school resumed on Tuesday. On
Tuesday when she was briefly left alone at one point, she
successfully texted [D.R.] and told her what was going on; [D.R.]
promised to get her cousin to come rescue her but she told her
not to do so because they were still at the Inn and she was afraid
they might injure her and the cousin.
On Wednesday, [Appellant] and his conspirators left the Roosevelt
Inn without her, having given her directives and the impression
that they were arranging to transfer her to a different motel to
resume their prostitution operation. When she was alone in their
room, the Inn employees told her she couldn’t stay there because
no one had paid for the room. She walked to the lobby and sat
on the couch to await [Appellant] as instructed.
Thankfully, in the interim, [D.R.] had reported the incident to their
school that morning and the school officials immediately contacted
the Philadelphia Police Department. As a result, police officers
arrived at the Roosevelt Inn while she was still seated in the lobby.
As she was getting into the police car, she panicked when she saw
Money and another man approaching, and assumed he was
coming to get her from the Inn. She pointed him out to the police
and they arrested him. At trial upon presentation by the
Commonwealth, she identified a corroborating still from the Inn’s
surveillance camera that displayed her, Ten-Ten, and Bacardi
together at the Inn.
* * *
[At trial, t]he Commonwealth called [D.R.,] who credibly
confirmed all of the events of which she was personally aware as
described by the [victim]. She added the clarification that on the
Wednesday morning after she had been told by the victim what
was going on, with whom she knew as Tim-Tim or Ten-Ten. She
verified her report to the school counselor who had then relayed
this same information to the dean who then communicated it to
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the school police who reported it to the Special Victims Unit (SVU),
who came and rescued the victim and, after they interviewed
them both at the station, advised them that they should transfer
out of their present school since they might not be safe in that
area. [D.R.] corroborated the victim’s testimony in every
significant aspect.
During the course of her convincing testimony, [D.R.] identified
the statement she had given to the police which, as defense
counsel noted during cross examination, did contain copies of the
text messages between her and the victim. Defense counsel
himself read aloud those text messages to the jury and enlisted
her confirmation of their content in an apparent attempt to bolster
his already discredited victim’s ability but failure to seek
assistance theory. Again this attempt to dissuade the jury belief
of the victim failed because it completely ignored her repeatedly
expressed fears of what harm might have ensued to her and
others if she tried to obtain help.
Police Officer Sharee Day described responding to the emergency
call for help from the high school police, briefly questioning [D.R.],
and reporting it to the Sexual Violence Unit of the Philadelphia
Police Department (SVU). SVU Detective Joseph Jenkins testified
that he had shown the victim a photographic array, to which she
had unequivocally identified [Appellant’s] photograph. The
Commonwealth then called Craig Judd, a Forensic Scientist II DNA
Analyst with the Office of Forensic Science, which was an
accredited forensic laboratory of the Philadelphia Police
Department. He testified as to analyzing DNA samples obtained
from the victim’s body in the hospital and the samples obtained
from [Appellant] and finding that [Appellant’s] sperm, along with
that of another unidentified male, had been present in the
[victim’s] vagina.
SVU Detective Kevin Gage described receiving the report of the
incident from the police officers who responded with others to the
call from the high school police and finding the victim at the
Roosevelt Inn, speaking to her briefly in their patrol car and
reporting her identification of Money, who they arrested.
Detective Gage testified that the victim had also described the
[Appellant’s] vehicle to him and they drove around the area and
found it and directed that it be secured by other officers and
confiscated for further inspection. He reported that he had
transported the victim to the SVU, obtained a summarized
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statement from her and then transported her to the hospital for
examination and DNA sample extraction.
Based upon the information he had gleaned and having been
provided a description of [Appellant] by the victim, Detective Gage
related that he had been able to find records and photographs of
[Appellant], the latter of which he turned over to Officer Jenkins
to perform the photo array identification. He then described
searching [Appellant’s] vehicle and finding [Appellant’s] ID and a
key card, for a room at the Roosevelt Inn which the [victim] had
told him was the room she and the others were using; Detective
Gage had the owner of the Roosevelt Inn identify the key card and
obtained surveillance recordings from him.
At trial, the prosecutor showed the recordings to Detective Gage
that had been recovered which he had identified, but did not
comment on their content. He also identified his report and the
warrant that he had obtained for the [Appellant’s] arrest. On
cross examination, counsel only established that the Detective
had subsequently searched the voluminous Back Page website
and, though he found “hundreds” of Diamonds listed, none of
them appeared to be the victim. After the Commonwealth and
defense counsel moved their exhibits into evidence and the court
conducted a colloquy of [Appellant] concerning his decision not to
testify, the parties rested.
Trial Ct. Op., 1/29/20, at 5-8.
On October 12, 2018, following a three-day jury trial, Appellant was
convicted of all charges. On January 3, 2019, the trial court sentenced
Appellant to an aggregate term of twenty-seven to fifty-four years’
incarceration followed by twenty-six years’ probation. On January 14, 2019,
Appellant filed a timely post-sentence motion in which he challenged the
weight of the evidence and discretionary aspects of the trial court’s sentence.2
____________________________________________
2 On August 2, 2019, this Court issued a rule to show cause as to why the
appeal should not be quashed as untimely. See Order, 8/2/19. Appellant
(Footnote Continued Next Page)
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After the motion was denied by operation of law, Appellant filed a timely notice
of appeal and a court-ordered Pa.R.A.P. 1925(b) statement. The trial court
issued a responsive Rule 1925(a) opinion addressing Appellant’s claims.3,4
On appeal, Appellant raises the following issues:
1. Did the trial court err in applying the Rape Shield Law [18
Pa.C.S. § 3104] and the Pennsylvania Rules of Evidence to
prevent [Appellant] from confronting the victim with her past
claim to the police of being asked to engage in prostitution and
from presenting evidence on the subject where the evidence
could have bolstered [Appellant’s] impeachment theory that
the victim was fabricating the present allegations, particularly
where [Appellant] was not charged with sexual offenses under
Chapter 31 of the Crimes Code to which the Rape Shield Law
____________________________________________
filed a response indicating that his post-sentence motion was timely filed on
Monday, January 14, 2019, which is also reflected on the timestamped copy
of the motion included in the record. This Court discharged the rule to show
cause and referred consideration of Appellant’s response to this panel.
Although January 13, 2019 was ten days from the date Appellant was
sentenced, it was a Sunday. See 1 Pa.C.S. § 1908 (stating that when the last
day of a statutory period falls on a Saturday or Sunday, such day shall be
omitted from the time computation). Therefore, Appellant’s post-sentence
motion, filed on Monday, January 14, 2019, was timely.
3 The trial court concluded that Appellant failed to properly preserve his weight
claim in his post-sentence motion or his Rule 1925(b) statement.
4 While Appellant’s direct appeal was pending, he filed a motion for relief with
the trial court, alleging that the trial court erred in allowing court staff to
instruct the jury ex parte. On September 5, 2019, the trial court held a brief
hearing at which it disagreed with Appellant’s claim, noted that there was no
record of such an incident having occurred, and explained that any alleged
errors with the jury instructions should have been raised in the Rule 1925(b)
statement. See N.T. Mot. Hr’g, 9/5/19, at 8-12. On October 17, 2019, the
trial court denied Appellant’s motion, concluding that it did not have
jurisdiction to review the issue. See N.T. Mot. Hr’g, 10/17/19, at 4.
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was applicable, in violation of the [Appellant’s] constitutional
rights of confrontation and to due process of law?
2. Whether the evidence was insufficient as a matter of law to
support [Appellant’s] conviction for kidnapping in violation of
18 Pa.C.S. § 2901, where the Commonwealth failed to prove
beyond a reasonable doubt that the victim was removed or
confined in a place of isolation by force, threat or deception?
3. Whether the evidence was insufficient as a matter of law to
support [Appellant’s] conviction for involuntary servitude in
violation of 18 Pa.C.S. § 3012, where the Commonwealth failed
to prove beyond a reasonable doubt that the victim was
subjected to involuntary servitude by the means proscribed by
the statute?
4. Whether [Appellant’s] convictions were against the weight of
the evidence considering the testimony of the [victim] that was
fraught with anomalies and inconsistencies in contrast to the
video evidence from inside the Roosevelt Inn showing no men
other than [Appellant] and a hotel employee accessing Room
229 throughout the extended holiday weekend, the lack of any
Back Page posting of the [victim], and the dearth of text
messaging evidence showing any elicit activity occurring at the
hotel?
5. Did the trial court properly instruct the jury by repeating the
law of conspiracy three separate times on three theories of
conspiracy, one of which was not identified as an objective in
the Bill of Information, and then improperly impose three
separate conspiracy sentences where the Commonwealth only
charged [Appellant] with a single conspiracy in violation of
[Appellant’s] rights under the Fifth and Sixth Amendments to
the United States Constitution?
6. Did the trial court err by ex parte directing her tipstaff to
instruct the jury in some way and behind closed doors at 5:43
P.M. on Friday that if they do not reach a verdict by 6:00 P.M.,
the jury would be required to return on Monday whereupon the
jury returned a guilty verdict several minutes later at 5:51 P.M.
and where such a directive, depending upon what the manner
and precise wording, could have reasonably affected the
deliberative process of the jury by rushing them to verdict?
7. Did the trial court impose an illegal sentence where, for
purposes of sentencing, the conviction for kidnapping merged
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with the conviction for involuntary servitude and where the
conviction for involuntary servitude merged with the conviction
for trafficking in minors?
8. Did the trial court abuse its discretion in imposing its sentence,
where the trial court failed to state on the record adequate
reasons for imposing certain sentences outside and above the
sentencing guidelines, considered unsubstantiated factors and
imposed an unconstitutionally excessive aggregate sentence of
27 to 56 years of incarceration representing cruel and unusual
punishment?
Appellant’s Brief at 5-7.
Evidence of the Victim’s Past Conduct
In his first issue, Appellant argues that the trial court erred in excluding
evidence that the victim previously made allegations of sexual misconduct
against another individual in an unrelated incident. Appellant’s Brief at 35.
By way of background to this claim, the trial court explained:
On the first day of trial, after the completion of jury selection and
before any evidence had been presented, the prosecution moved
to preclude the defense from mentioning or referring to the
[victim’s] prior sexual history, in general, pursuant to the Rape
Shield Law, to which [Appellant’s] trial counsel specifically stated
he had no objection and that he readily agreed. However, just
before the trial recommenced the next day, this court upon
request did exclude a specific instance of the [victim’s] prior
sexual history, to which ruling defense counsel objected.
The [Commonwealth] disclosed that, in speaking with the [victim]
in preparation for trial the night before, she had been advised by
her, and had obtained a police report documenting, that on or
about April 28, 2016, the [victim] had reported to the SVU that,
when she was 15 years old, she had been taken to Atlantic City
and, over the course of a few days, had consensual sex with the
25-year-old male who had transported her there. The referenced
male had no connection to [Appellant]. [Thereafter, both parties
made argument] concerning [the] admissibility [of that evidence]
for impeachment purposes.
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As presented, there was no indication of what prompted the report
or that any further information was sought, or actions taken, by
the police, but the [Commonwealth] did point out that no charges
had been filed against anyone as a result of that report. . . .
Within the [Commonwealth’s] argument that the report should be
precluded as irrelevant, the [Commonwealth] mentioned that, if it
were a rape case, it would have been precluded under the Rape
Shield Law. She further argued that her current position was that
it should also be precluded in cases where the defendant is
charged with the crimes in question because its legislative purpose
was to protect victims of such crimes from being attacked by
scandalous, immaterial, irrelevant and prejudicial matters.
In response, [Appellant’s] trial counsel broadly linked irrelevant
assumptions. He had essentially debated that, since no charges
had been brought against that reported adult individual, the police
must not have believed her story and that this lack of prosecution
constituted evidence that she might be lying about [Appellant].
Trial Ct. Op. at 12-14.
Ultimately, the trial court ruled as follows:
The set of information as reflected in these report summaries is
that [the victim] reported meeting a person who [was] twenty-
five years old when she was fifteen and having sex with that
person. And that person and/or his girlfriend asking her to
prostitute herself in the future. There’s no allegation of being held
against one’s will, basically. She talks about having consensual
sex with him and/or him and her and that’s it.
So that, in itself, does not give rise to piercing the rape shield
instructions. Similarly, why the detectives have not to date
pursued criminal charges to be deemed appropriate or not
appropriate, for whatever reason, is completely irrelevant. Their
investigations or methods [are] not at issue here. So that’s not
relevant. So I’m not going to permit it.
N.T. Trial, 10/10/18, at 11.
On appeal, Appellant argues that the trial court erred in excluding this
evidence at trial. First, he contends that at the time of trial, the Rape Shield
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Law did not apply to criminal prosecutions for offenses outside of Chapter 31.
Appellant’s Brief at 37. Further, Appellant argues that the evidence was
relevant in order “[t]o bolster his impeachment theory and challenge the
credibility of [the victim]” by “confront[ing the victim] with a similar claim she
made to the police less than a year earlier.” Id. In support, Appellant
explains:
[In the prior matter, the victim] told police after she was found
away from home and missing school, that she accompanied an
older man and his girlfriend to an Atlantic City Hotel where she
was also asked to engage in prostitution. [Appellant’s] intent in
confronting [the victim] with this earlier statement was not to
show that she actually did engage in prostitution. Rather, the
confrontation was designed to show that [the victim] contrived a
similar story that successfully avoided punishment when she was
found by the police in the same or similar precarious position as
in the present case.
Id. at 38. Appellant argues that the evidence was relevant to his defense
that the victim “fabricated the claim of being forced into prostitution only after
the police found her in the hotel alone and to avoid harsh punishment for
being a runaway and a truant.” Id. at 38.
The Commonwealth responds that the “evidence of the victim’s prior
sexual conduct was not relevant and would have misdirected the jury’s
attention away from [Appellant’s] acts and toward a mini-trial of the victim’s
unrelated history concerning chastity.” Commonwealth’s Brief at 16. The
Commonwealth notes that Appellant claimed that the “evidence was relevant
as somehow showing that [the victim] had a history of fabricating stories in
order to avoid punishment or being seen as a wrongdoer” but that, as the trial
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“court recognized, there was no evidence that this report had been a
fabrication.” Id. at 15. Specifically, the Commonwealth notes that (1) the
allegations were still under investigation by New Jersey authorities at the time
of Appellant’s trial; and (2) there was no evidence that the victim “was under
any threat of punishment in either the instant situation or the prior situation
defendant sought to introduce.” Id. Therefore, the Commonwealth contends
that “regardless of the applicability of the Rape Shield Law, it was within the
trial court’s discretion to preclude” this irrelevant evidence. Id.
In reviewing Appellant’s claim, our standard of review is as follows:
The admission or exclusion of evidence is within the sound
discretion of the trial court, and in reviewing a challenge to the
admissibility of evidence, we will only reverse a ruling by the trial
court upon a showing that it abused its discretion or committed
an error of law. Thus our standard of review is very narrow. To
constitute reversible error, an evidentiary ruling must not only be
erroneous, but also harmful or prejudicial to the complaining
party.
Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa. Super. 2012). This Court has
explained that “abuse of discretion is not merely an error of judgment, but
rather where the judgment is manifestly unreasonable or where the law is not
applied or where the record shows that the action is a result of partiality,
prejudice, bias or ill will.” Commonwealth v. Aikens, 990 A.2d 1181, 1184–
85 (Pa. Super. 2010).
This Court has explained:
Relevance is the threshold for admissibility of evidence; evidence
that is not relevant is not admissible. Commonwealth v. Cook,
952 A.2d 594, 612 (Pa. 2008); Pa.R.E. 402. “Evidence is relevant
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if it logically tends to establish a material fact in the case, tends
to make a fact at issue more or less probable or supports a
reasonable inference or presumption regarding a material fact.”
Our Rules of Evidence provide the test for relevance: evidence is
relevant if “(a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact
is of consequence in determining the action.” Pa.R.E. 401.
Further, “[t]he court may exclude relevant evidence if its
probative value is outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Pa.R.E. 403.
Under Rule 607, “[t]he credibility of a witness may be impeached
by any evidence relevant to that issue[.]” Pa.R.E. 607(b). The
Comment to Rule 607 further emphasizes that any evidence
offered to impeach the credibility of a witness must be relevant
under the Rule 401 relevancy test. Pa.R.E. 607 cmt. In addition,
Rule 608 provides that “[a] witness’s credibility may be attacked
or supported by testimony about the witness’s reputation for
having a character for truthfulness or untruthfulness.” Pa.R.E.
608(a). However, “the character of a witness for truthfulness may
not be attacked or supported by cross-examination or extrinsic
evidence concerning specific instances of a witness’[s] conduct[.]”
Pa.R.E. 608(b)(1).
Commonwealth v. Leap, 222 A.3d 386, 390-91 (Pa. Super. 2019) (some
citations omitted and formatting altered), appeal denied, 233 A.3d 677 (Pa.
2020).
Evidence challenging the credibility of an adverse witness is relevant.
See generally Commonwealth v. Woeber, 174 A.3d 1096, 1104 (Pa.
Super. 2017). However, “a witness may not be contradicted upon a collateral
matter” that “has no relationship to the matter on trial.” See
Commonwealth v. Johnson, 638 A.2d 940, 942-43; see also
Commonwealth v. Holder, 815 A.2d 1115, 1119-20 (Pa. Super. 2003)
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(citation omitted) (concluding that a prior rape allegation against a third party
was immaterial to whether the defendant assaulted the victim and, therefore,
it was a collateral matter unsuitable for cross-examination).
The Rape Shield Law, codified at 18 Pa.C.S. § 3104, precludes the
admission of evidence concerning a victim’s sexual history.5 See 18 Pa.C.S.
§ 3104(a). Prior to 2019, the Rape Shield Law was limited to cases involving
Chapter 31 offenses. See Commonwealth v. Schley, 136 A.3d 511, 517
(Pa. Super. 2016) (holding that the plain language of 18 Pa.C.S. § 3104(a)
indicated that it was limited to cases involving Chapter 31 offenses); see also
18 Pa.C.S. § 3104(c), (eff. August 27, 2019) (expanding the Rape Shield Law
to include enumerated offenses outside of Chapter 31).
Here, as noted previously, Appellant argues that the Rape Shield Law
was inapplicable in the instant case because he was not charged with a
Chapter 31 offense. Further, he asserts that the evidence was relevant for
____________________________________________
5 At the time of Appellant’s trial, the statute read, in pertinent part, as follows:
Evidence of specific instances of the alleged victim’s past sexual
conduct, opinion evidence of the alleged victim's past sexual
conduct, and reputation evidence of the alleged victim’s past
sexual conduct shall not be admissible in prosecutions under this
chapter except evidence of the alleged victim’s past sexual
conduct with the defendant where consent of the alleged victim is
at issue and such evidence is otherwise admissible pursuant to the
rules of evidence.
18 Pa.C.S. § 3104(a) (subsequently amended eff. Aug. 27, 2019).
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purposes of impeachment. In addressing Appellant’s claims, the trial court
explained:
[At trial, Appellant’s sole claim was that] the evidence of the
former incident was vaguely relevant in that it somehow called
into question the [victim’s] veracity concerning the case at hand.
This farfetched analysis did [not] hold any merit. As presented,
this irrelevant and immaterial evidence constituted a proposed
prejudicial infringement upon the victim’s privacy rights for no
valid purpose.
* * *
While it is correct that this [c]ourt deemed that the proposed
evidence of the former incident as prohibited by the legislative
intent of the RSL, it also ruled in the alternative, that it was totally
irrelevant and immaterial and thus inadmissible under the general
rules of evidence. It was patently obvious that a single previous
voluntary sexual encounter with an adult, which indisputably did
not involve prostitution or in any way demonstrate a “propensity
to fabricate such claims,” had no relevance whatsoever to whether
the [victim] was being truthful about being forced into prostitution
by Appellant. [Trial c]ounsel’s vaguely linked insinuations that it
somehow was relevant to her reliability were patently fallacious.
Moreover, trial counsel’s proposed method of admission of this
hearsay information was irrevocably flawed. [Trial c]ounsel
attempted at trial to introduce the victim’s report of the prior
incident through questioning of Detective Kevin Gage about the
report. This backdoor method constituted an inversion of the
hearsay rules governing the use of prior inconsistent statements
to impeach witnesses. Her report about her prior sexual
encounter with an adult was frankly not inconsistent with anything
to which she testified at trial. It was only counsel’s squalid
imagination that could construe her report as being somehow
indicative that she had previously engaged in prostitution or had
a tendency to invent claims of being coerced into doing so. This
[c]ourt had already ruled that the report was inadmissible itself as
immaterial and irrelevant, and the victim did not testify about that
event herself. Nothing within the testimony would have triggered
a permission for Detective Gage to describe this inadmissible
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hearsay which could not have served any legitimate probative
purpose.
Trial Ct. Op. at 14-16.
Based on our review of the record, we discern no abuse of discretion by
the trial court. See Lopez, 57 A.3d at 81; see also Aikens, 990 A.2d at
1184–85. As the trial court noted, there was no indication that the victim
fabricated the allegations against the individual in the unrelated matter. See
Trial Ct. Op. at 16. Further, the details of those allegations had no bearing on
the charges against Appellant. Therefore, the trial court did not abuse its
discretion in excluding that evidence at trial.6 See Johnson, 638 A.2d at 942-
43; see also Holder, 815 A.2d at 1119-20. Accordingly, Appellant is not
entitled to relief.
Sufficiency of the Evidence
Appellant next challenges the sufficiency of the evidence supporting his
convictions for kidnapping and involuntary servitude. Appellant’s Brief at 44.
With respect to kidnapping, Appellant claims that the Commonwealth failed to
prove that the “removal or confinement was by force, threat or deception” or
that the victim was confined in a place of isolation. Id. at 46. Appellant
contends that “by [the victim’s] own account, she willingly went with
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6 Because we agree with the trial court’s conclusion that the evidence was
inadmissible under the Pennsylvania Rules of Evidence, it is unnecessary to
address the applicability of the Rape Shield Law. See Schley, 136 A.3d at
517 (reiterating that “evidence is admissible only if it is relevant and material
under the traditional rules of evidence,” regardless of the applicability of the
Rape Shield Law).
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[Appellant]” to the Roosevelt Inn and had consensual sex with him. Id.Appellant argues that the victim was not in isolation because she testified that
“the hotel employees knew of her presence,” there was video footage of her
“moving freely” around the hotel, and she was “out and about in the
community many times . . . [on] trips to the bodega, Target and Old Navy.”
Id. at 47. Further, Appellant asserts that the victim “had her phone and was
constantly calling and texting D.R. and other family members throughout the
weekend.” Id. at 54. Therefore, Appellant claims that there was insufficient
evidence to support his conviction for kidnapping.
Appellant also argues that if we conclude that there was insufficient
evidence to establish kidnapping, “then this Court should likewise reverse his
conviction for involuntary servitude because the Commonwealth did not prove
beyond a reasonable doubt that [the victim] was subjected to involuntary
servitude by any of the other proscribed means set forth in this statute.” Id.
at 51.
The Commonwealth responds that Appellant’s “argument relies on [the
victim’s] testimony that she initially went with [Appellant] willingly and that
she did not describe any overt threat or force by [Appellant].”
Commonwealth’s Brief at 18. However, the Commonwealth contends that
“[t]his self-serving view of the evidence is contrary to the standard of review
and ignores most of the surrounding facts and circumstantial evidence.” Id.
at 19.
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The Commonwealth argues that the victim’s “isolation from the usual
protections of society was confirmed by the fact that she was not rescued from
[Appellant’s] trafficking scheme for over three days.” Id. at 22. The
Commonwealth notes that “[a]lthough [the victim] had limited access to her
cell phone, [Appellant] made her remove her password so he could access it,”
and the victim “did not respond to voice calls from D.R. or her mother, but
falsely reassured them over text message that she was safe.” Id. The
Commonwealth argues that the evidence demonstrates that the victim “was
afraid for the safety of her loved ones and concerned about the repercussions
if she alerted them to [Appellant’s] crimes.” Id.
Finally, the Commonwealth asserts that, because there was sufficient
evidence to prove kidnapping, Appellant is not entitled to relief on his
involuntary servitude claim. Id.
In reviewing a challenge to the sufficiency of the evidence, our standard
of review is as follows:
Because a determination of evidentiary sufficiency presents a
question of law, our standard of review is de novo and our scope
of review is plenary. In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
to prove every element of the offense beyond a reasonable doubt.
[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. Moreover, as an appellate court, we may not re-weigh
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the evidence and substitute our judgment for that of the
factfinder.
Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018).
A person is guilty of kidnapping of a minor if he unlawfully
removes a person under 18 years of age a substantial distance
under the circumstances from the place where he is found, or if
he unlawfully confines a person under 18 years of age for a
substantial period in a place of isolation, with any of the following
intentions:
(1) To hold for ransom or reward, or as a shield or hostage.
(2) To facilitate commission of any felony or flight
thereafter.
(3) To inflict bodily injury on or to terrorize the victim or
another.
(4) To interfere with the performance by public officials of
any governmental or political function.
18 Pa.C.S. § 2901(a.1). “A removal or confinement is unlawful within the
meaning of subsection (a.1) if it is accomplished by force, threat or
deception[.]” 18 Pa.C.S. § 2901(b)(1).
A person commits involuntary servitude if “the person knowingly,
through any of the means described in subsection (b), subjects an individual
to labor servitude or sexual servitude.” 18 Pa.C.S. § 3012(a). Section
3012(b) sets forth the means by which a person may be subjected to
involuntary servitude, which includes “[k]idnapping or attempting to kidnap
any individual.” 18 Pa.C.S. § 3012(b)(3).
Here, the trial court addressed the sufficiency of the evidence supporting
Appellant’s kidnapping conviction as follows:
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There was no question that Appellant had removed the victim from
her friend’s house by falsely implying that he was going to take
her to a liquor store. He confined her, coerced her into becoming
a prostitute, by deception, by isolation, inebriation, and by at least
the tacit threat of force. He and his cohorts had unlawfully
removed the victim a substantial distance and confined her to
facilitate commission of multiple felony-graded offenses . . .
including promoting and keeping a house of prostitution, (F1);
involuntary servitude, (F1); and trafficking in minors, (F1). The
act does not define the degree of force or deception required and
therefore any extent of such actions will suffice.
* * *
[W]ithin his weight-of-the-evidence claim, Appellant disparaged
the Commonwealth’s case by claiming that the evidence, as he
had characterized it, showed that the victim had the physical
ability to simply walk away from the Roosevelt Inn and the other
places that Appellant had transported her at any time. That
contention implied that there was no evidence of any forceful
removal or confinement. That affirmation, however, ignored the
victim’s consistently and credibly expressed intense fear of the
demeanor of Appellant and his associates. The evidence firmly
established directly and circumstantially that she had reasonably
discerned that any attempt to leave or to seek assistance would
have resulted in physical harm to herself and to anyone from
whom she sought such aid.
* * *
Simply stated, a reviewing court cannot find the evidence to have
been insufficient simply because an appellant distorted that
evidence or provided his own self-serving interpretation of it. It
is widely recognized that an appellant who challenges the
evidence must demonstrate that the actual evidence presented
had been insufficient to prove his guilt; he cannot solely rely on
his own mischaracterization of a few pieces of it. In this case,
although Appellant did not actually distort the evidence of physical
compulsion, he has sought the reviewing court to ignore its most
obvious or common sense meaning and all relevant surrounding
threatening and coercive circumstances that this teenage victim
had reasonably perceived.
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Trial Ct. Op. at 23-27 (some formatting altered).
With respect to involuntary servitude, the trial court explained:
In this case, the victim was kidnapped and transported under false
and bullying pretenses. A scheme involving coercion, isolation,
coupled with alcohol and marijuana ingestion as well as fear of
resulting harm by multiple people was concretely employed
throughout the process. The claim that the prosecution had not
proven that Appellant had not exerted any of those means
reflected another self-serving misinterpretation of the evidence.
Appellant and his associates had pressured the victim into being
his prostitute for the purpose of generating income for themselves
through the use of collective tacit force employed by multiple
individuals.
Id. at 28.
Based on our review of the record, and viewing the evidence in the light
most favorable to the Commonwealth as verdict winner, we agree with the
trial court that there was sufficient evidence to support Appellant’s convictions
for kidnapping and involuntary servitude. See Palmer, 192 A.3d at 89. With
respect to kidnapping, the evidence established that Appellant took the minor
victim to the Roosevelt Inn, where she was kept in isolation for three days.
See 18 Pa.C.S. § 2901(a.1). During that time, Appellant also committed
involuntary servitude by arranging for the victim to have sex with other men
in exchange for money. See 18 Pa.C.S. § 3012(a). Under these
circumstances, Appellant is not entitled to relief.
Weight of the Evidence
Appellant next claims that the verdicts were against the weight of the
evidence. Appellant’s Brief at 51. In support, Appellant challenges the
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victim’s credibility and argues that “the lack of such evidence was so
compelling that to ignore it or even to give it equal weight with [the victim’s]
testimony was not based on sound reason.” Id. at 54-55.
When reviewing a weight claim, our standard of review is as follows:
The weight of the evidence is a matter exclusively for the finder
of fact, who is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses. A new trial is
not warranted because of a mere conflict in the testimony and
must have a stronger foundation than a reassessment of the
credibility of witnesses. Rather, the role of the trial judge is to
determine that notwithstanding all the facts, certain facts are so
clearly of greater weight that to ignore them or to give them equal
weight with all the facts is to deny justice. On appeal, our purview
is extremely limited and is confined to whether the trial court
abused its discretion in finding that the jury verdict did not shock
its conscience. Thus, appellate review of a weight claim consists
of a review of the trial court’s exercise of discretion, not a review
of the underlying question of whether the verdict is against the
weight of the evidence. An appellate court may not reverse a
verdict unless it is so contrary to the evidence as to shock one’s
sense of justice.
Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa. Super. 2015) (en
banc) (citations omitted and formatting altered).
Here, as noted previously, the trial court concluded that Appellant failed
to properly preserve his weight claim. Specifically, the trial court explained:
Within this general claim, no reasons had been provided within
the Rule 1925(b) statement nor within any post-sentence motion
by Appellant as to why the verdicts had been “against the weight
of the evidence.” Frankly, zero supporting evidence been
presented within the bald and vaguely recited assertions. Rather,
it was broadly claimed that the victim’s testimony had been “rife
with inconsistencies and contradictions” because the video from
the Inn, which simply showed the victim with [Appellant] and
Bacardi walking with the victim, and the failure to produce the
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Back Page posting or the text messaging evidence (the latter
being blatantly false since [Appellant’s] trial counsel himself had
read them to the witness in open court) incontrovertibly proved
her ability to walk away were patently fallacious
mischaracterizations of their import.
Trial Ct. Op. at 28-29.
Based on our review of the record, we agree with the trial court that
Appellant waived his weight claim. See Commonwealth v. Freeman, 128
A.3d 1231, 1248-49 (Pa. Super. 2015) (concluding that the appellant waived
his challenge to the weight of the evidence where his Rule 1925(b) statement
failed to specify which verdicts were against the weight of the evidence and
did not offer specific reasons as to why the verdicts were against the weight
of the evidence). Therefore, he is not entitled to relief.7
Ex Parte Jury Instruction
Appellant also argues that the trial court erred by allowing court staff to
instruct the jury ex parte. Appellant’s Brief at 58. However, Appellant did not
raise this issue with the trial court or in his Rule 1925(b) statement. Instead,
Appellant raised the issue for the first time in a supplemental Rule 1925(b)
statement, which the trial court rejected as having been filed without leave of
court. See Trial Ct. Op. at 3-4. Therefore, this claim is waived. See
Pa.R.Crim.P. 647(C) (stating that “[n]o portions of the charge nor omissions
____________________________________________
7 In any event, even if properly preserved, we would find no abuse of
discretion by the trial court in rejecting Appellant’s weight claim. See
Gonzalez, 109 A.3d at 723 (stating that the jury, as fact-finder, is entitled to
make credibility determinations concerning the victim’s testimony and weigh
that testimony against the other evidence presented at trial).
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from the charge may be assigned as error, unless specific objections are made
thereto before the jury retires to deliberate”); Commonwealth v. Knight,
241 A.3d 620, 634 (Pa. 2020) (concluding that the appellant waived his
challenge to the court’s jury instructions by failing to timely object); Pa.R.A.P.
302 (stating that “[i]ssues not raised in the lower court are waived and cannot
be raised for the first time on appeal”).
Conspiracy Convictions
Appellant also raises two claims regarding his conspiracy convictions.
First, he challenges the trial court’s jury instruction on conspiracy. Appellant’s
Brief at 59-60. Second, he argues that the trial court illegally sentenced him
on three separate conspiracy charges although only one count of conspiracy
was listed in the criminal information. Id.By way of background to these issues, the Commonwealth filed a
criminal information charging Appellant with one count of conspiracy. See
Criminal Information, 5/19/17, at 1. Within the conspiracy charge, the
Commonwealth listed three criminal objectives: kidnapping, promoting
prostitution, and trafficking in minors. Id. At the conclusion of trial, both the
Commonwealth and Appellant’s trial counsel agreed to three separate jury
instructions on conspiracy, each of which would focus on a separate underlying
criminal objective. See N.T. Trial, 10/12/18, at 11-13. Specifically, the
Commonwealth requested an instruction on conspiracy with respect to
trafficking in minors, involuntary servitude, and promoting prostitution. Id.
at 11-12. Appellant’s trial counsel indicated that he agreed. Id. at 14. The
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parties also agreed to list those crimes as separate charges on the verdict
sheet. Id. at 13; 17-19. Ultimately, after the jury returned a guilty verdict
on all three conspiracy charges, the trial court imposed concurrent sentences
for each count.
On appeal, Appellant claims that by instructing the jury on conspiracy
for three separate criminal objectives, the trial court “overemphasized the law
of conspiracy.” Appellant’s Brief at 56. Further, he alleges that “although the
issues were ultimately submitted to a jury, [he] was denied his notice
guarantee since the bills of information charged him with only one count of
conspiracy with exposure to only a twenty-year maximum term of
imprisonment as opposed to three counts of conspiracy with exposure up to a
sixty-year maximum term of imprisonment.” Id. (citing Apprendi v. New
Jersey, 530 U.S. 466 (2000)). Further, Appellant contends that the trial court
“added two separate counts of conspiracy, one of which was for an objective
not identified in the count of criminal conspiracy charged.” Appellant’s Brief
at 57. Appellant argues that although the trial court imposed concurrent
sentences on the three separate conspiracy convictions, he faces “additional
penal exposure in the future should he ever violate his probation.” Id.Therefore, Appellant requests that we “vacate his conspiracy sentences and
remand for resentencing on a single count of conspiracy.” Id. at 58.
The Commonwealth responds that “defense counsel expressly agreed
for the jury to be instructed on three separate conspiracy charges” and “never
objected to the instructions as given.” Commonwealth’s Brief at 29.
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Therefore, the Commonwealth argues that Appellant waived his challenge to
the jury instruction on conspiracy. Id. at 28. Further, the Commonwealth
asserts that “[t]o the extent [Appellant] challenges the implicit nature of [the]
amendment which was not initiated by a formal motion to amend [he] once
again never challenged the charges as given.” Id. Therefore, the
Commonwealth asserts that “[Appellant’s] conspiracy charges, to which he
acquiesced, were proper.” Id. at 31.
Initially, to the extent Appellant challenges the trial court’s jury
instruction on conspiracy, Appellant acknowledges that trial counsel did not
object to that instruction at trial. See Appellant’s Brief at 57. Indeed, the
record reflects that Appellant explicitly agreed to the trial court’s jury
instruction as it pertained to his charges for conspiracy to commit involuntary
servitude, trafficking in minors, and promoting prostitution. See N.T. Trial,
10/12/18, at 12-19. Therefore, Appellant’s claim is waived. See Pa.R.Crim.P.
647(C); see also Knight, 241 A.3d at 634.
As to Appellant’s due process claim,
our standard of review is de novo and the scope of review is
plenary. Due process requires a criminal statute to give fair
warning of the conduct prescribed, and the criminal information
must provide fair notice of every crime of which a criminal
defendant is accused. The notice must be “sufficiently specific so
as to allow the defendant to prepare any available defenses should
he exercise his right to a trial.” The due process requirements
ensure that if the Commonwealth prevails at trial, the defendant’s
conviction is not arbitrary or oppressive.
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Commonwealth v. Widger, 237 A.3d 1151, 1164 (Pa. Super. 2020)
(citations and some quotation marks omitted).
“[U]nder the Due Process Clause of the Fifth Amendment and the notice
and jury trial guarantees of the Sixth Amendment, any fact (other than prior
conviction) that increases the maximum penalty for a crime must be charged
in an indictment, submitted to a jury, and proven beyond a reasonable doubt.”
Apprendi, 530 U.S. at 476.
An indictment or criminal information “sets the stage for trial and what
the Commonwealth intends to prove.” Commonwealth v. King, 234 A.3d
549, 563 (Pa. 2020). However, a defendant may receive de facto notice of
charges through other means, such as factual summaries included in the
charging documents. Id. at 566. Therefore, even where the criminal
information is “insufficient as a matter of due process notice[, it] does not
resolve whether the conviction at trial was illegally secured.” Id. at 563.
Instead, where “proper notice would permit the [defendant’s] sentence,” a
defendant’s claim is subject to harmless error review.8 Id. at 566.
____________________________________________
8 We note that although Commonwealth has not raised any arguments
concerning harmless error, we may conduct a harmless error analysis sua
sponte. See Commonwealth v. Hamlett, 234 A.3d 486, 492 (Pa. 2020)
(stating that “sua sponte invocation of the harmless error doctrine is not
inappropriate as it does nothing more than affirm a valid judgment of sentence
on an alternative basis”); see also Commonwealth v. Moore, 937 A.2d
1062, 1073 (Pa. 2007) (noting that although the Commonwealth did not
include a harmless error analysis in its brief, “an appellate court may affirm a
valid judgment based on any reason appearing as of record, regardless of
whether it is raised by the appellee”).
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Here, the trial court concluded that Appellant waived this issue because
trial counsel did not object to “what was in effect a tacit allowance of
amendments to the bill of information” and, instead, trial counsel “specifically
expressed his approval.” Trial Ct. Op. at 31 (citing N.T. Trial, 10/12/18 at 13-
14). Further, the trial court stated:
Since [Appellant] was charged with conspiracy in connection with
the prostitution charge and was fully aware that the evidence was
going to show that his cohorts assisted him in that endeavor as
well as in the involuntary servitude and trafficking that facilitated
it, he could also not establish that those charges would have
altered his defense.
Trial Ct. Op. at 33.
As noted previously, the criminal information charged Appellant with one
count of conspiracy, which included three separate underlying criminal
objectives. See Criminal Information, 5/19/17, at 1. The criminal information
also included separate charges for kidnapping, promoting prostitution,
trafficking in minors, and involuntary servitude. Id. at 1-2. Although the
Commonwealth did not give formal notice of its intent to seek separate
conspiracy convictions prior to trial, Appellant had de facto notice that the
Commonwealth could pursue a conviction on more than one criminal objective
for conspiracy. See King, 234 A.3d at 563. Further, prior to jury
deliberations, the Commonwealth replaced the conspiracy to commit
kidnapping charge with conspiracy to commit involuntary servitude. See N.T.
Trial, 10/12/18, at 12-19. Appellant did not object to the modification and
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instead explicitly agreed to have each of the three conspiracy charges listed
as separate counts on the verdict sheet. See id.
Because the jury considered all three conspiracy offenses and found
Appellant guilty of each charge beyond a reasonable doubt, his resulting
convictions and sentences were not illegal. See King, 234 A.3d at 563
(stating that the jury found the defendant guilty of all charges beyond a
reasonable doubt and “that the Commonwealth’s information was insufficient
as a matter of due process notice does not resolve whether the conviction at
trial was illegally secured”). Therefore, any deficiency in the Commonwealth’s
notice is subject harmless error review.9 See id. at 564 (reiterating that
“notwithstanding defective notice even in the criminal context, a variance may
be deemed harmless where a defendant is fully apprised of the charges
against him and able to anticipate and respond to the prosecution’s proof”
(citation omitted)).
Finally, the record reflects that Appellant’s defense strategy was to
attack the victim’s credibility, emphasize the lack of corroborating evidence,
and to argue that the victim was a willing participant in the events alleged by
the Commonwealth. See N.T. Trial, 10/18/18, at 46-48. Therefore, we agree
with the trial court that although the Commonwealth did not provide formal
____________________________________________
9 As indicated previously, the Commonwealth did not raise any arguments
concerning harmless error. However, we conclude that under the
circumstances of this case, it is appropriate to conduct a harmless error
analysis sua sponte. See Hamlett, 234 A.3d at 492; see also King, 234
A.3d at 564.
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notice of its intent to pursue separate conspiracy convictions, it did not alter
Appellant’s defense. See King, 234 A.3d at 563. Under these circumstances,
where Appellant was aware of the charges against him and able to anticipate
and respond to the prosecution’s proof, any alleged error was harmless. See
id. at 563-64. Therefore, Appellant is not entitled to relief.
Merger
Appellant argues that his conviction for involuntary servitude should
have merged with kidnapping and/or trafficking a minor. In support, Appellant
claims:
In the present case and according to the Commonwealth’s
evidence, kidnaping was a constituent offense and one of the
necessary elements of the primary involuntary servitude offense.
Therefore, the two offenses should have merged for sentencing
purposes. Likewise, involuntary servitude was a constituent
offense and one of the necessary elements of the primary
trafficking in minors offense. Therefore, those two offenses
should have merged for sentencing purposes.
Appellant’s Brief at 63.
The Commonwealth responds that Appellant waived this issue by failing
to properly develop his claim or cite to pertinent authority. Commonwealth’s
Brief at 34. In any event, the Commonwealth argues that Appellant’s
assertion is meritless because his “many actions over the course of several
days did not constitute a single criminal act.” Id. at 35.
In support, the Commonwealth argues:
Appellant kidnapped [the victim] by transporting her away from
her friends and family and keeping her in an isolated hotel room
throughout a long weekend. He committed involuntary servitude
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by actively subjecting [the victim] to sexual servitude by keeping
her inebriated and coercing her to illegally sell her body multiple
times. He separately committed human trafficking by organizing
and arranging for men to have sex with [the victim] and
monetarily benefiting from that scheme. Although these crimes
contained some amount of overlap, defendant went beyond that
which was necessary to establish the bare elements of each
additional crime.
Id. at 35. Finally, the Commonwealth asserts that “even if [Appellant’s]
actions were considered a single act, his merger claim would still fail because
none of the crimes wholly include all the statutory elements of the other.” Id.
at 35-38.
Whether a defendant’s convictions merge for sentencing purposes is a
question implicating the legality of sentence. As such, our standard of review
is de novo and the scope of our review is plenary. Commonwealth v.
Baldwin, 985 A.2d 830, 833 (Pa. 2009).
Section 9765 provides, in part, as follows:
No crimes shall merge for sentencing purposes 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. Where crimes merge for sentencing purposes, the court
may sentence the defendant only on the higher graded offense.
42 Pa.C.S. § 9765. “The statute’s mandate is clear. It prohibits merger unless
two distinct facts are present: 1) the crimes arise from a single criminal act;
and 2) all of the statutory elements of one of the offenses are included in the
statutory elements of the other.” Baldwin, 985 A.2d at 833.
“The preliminary consideration is whether the facts on which both
offenses are charged constitute one solitary criminal act. If the offenses stem
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from two different criminal acts, merger analysis is not required.”
Commonwealth v. Healey, 836 A.2d 156, 157-58 (Pa. Super. 2003)
(citation omitted).
This Court has explained that
[t]he answer to this question does not turn on whether there was
a “break in the chain” of criminal activity. Rather, the answer
turns on whether “the actor commits multiple criminal acts beyond
that which is necessary to establish the bare elements of the
additional crime.” If so, then the defendant has committed more
than one criminal act. This focus is designed to prevent
defendants from receiving a “volume discount on crime” . . . .
Commonwealth v. Robinson, 931 A.2d 15, 24-25 (Pa. Super. 2007) (en
banc) (citations omitted).
Here, the trial court concluded that the offenses did not merge for
sentencing purposes.10 See Trial Ct. Op. at 33-36.
Based on our review of the record, we conclude that Appellant’s
involuntary servitude conviction does not merge with kidnapping or trafficking
in minors. See Baldwin, 985 A.2d at 833. The record reflects that
Appellant’s crimes were not based on a single criminal act. Instead, Appellant
committed multiple criminal acts over the course of three days, which included
transporting the minor victim to the Roosevelt Inn and keeping her in isolation,
arranging sexual encounters between the victim and other men, and forcing
____________________________________________
10 The trial court rejected Appellant’s merger claim based on the statutory
elements of each offense. However, because we conclude that Appellant’s
crimes did not arise from a single criminal act, we need not address the second
part of the merger test. See Healey, 836 A.2d at 157-58.
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the victim to have sex with those men in exchange for money. See Trial Ct.
Op. at 5-8. Appellant is not entitled to a volume discount for these crimes.
See Robinson, 931 A.2d 15, 24-25. Therefore, his claim is meritless.
Discretionary Aspects of Sentence
Finally, Appellant challenges the discretionary aspects of his sentence.
Specifically, he claims that the trial court (1) failed to state the reasons for
deviating from the sentencing guidelines; (2) considered an impermissible
sentencing factor; and (3) imposed an “unduly harsh and excessive”
aggregate sentence by structuring the sentences consecutively. Appellant’s
Brief at 32-34. However, although Appellant included a Rule 2119(f)
statement in his brief, his argument section does not include any discussion
of this issue.
The Commonwealth responds that Appellant waived his discretionary
sentencing claim by failing to properly develop the issue in his brief.
Commonwealth’s Brief at 39. In any event, the Commonwealth asserts that
Appellant’s claim is meritless for the reasons stated in the trial court’s opinion.
Id.Rule 2119(a) of the Pennsylvania Rules of Appellate Procedure provides
that an appellant’s “argument shall be divided into as many parts as there are
questions to be argued[.]” Pa.R.A.P. 2119(a). Additionally, each issue must
be supported by discussion and analysis of pertinent authority. Id. An
appellant’s failure to adhere to these rules may result in waiver. See
Commonwealth v. Murchinson, 899 A.2d 1159, 1160 (Pa. Super. 2006)
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(finding the appellant’s claims waived under Rule 2119(a) because he did not
develop meaningful argument with specific references to relevant case law
and to the record to support his claims); see also Commonwealth v.
Heilman, 867 A.2d 542, 546 (Pa. Super. 2005) (recognizing that an
appellant’s failure to provide “such discussion and citation of authorities as are
deemed pertinent” may result in waiver); Commonwealth v. Cornelius, 856
A.2d 62, 77 (Pa. Super. 2004) (declining to review the appellant’s claim where
there was limited explanation and development of the argument).
Here, although Appellant included a Rule 2119(f) statement, he did not
raise his discretionary sentencing claim in the argument section of his brief.
Therefore, this claim is waived.11 See Pa.R.A.P. 2119(a).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/17/2021
____________________________________________
11 In any event, even if properly preserved, the trial court thoroughly
addressed Appellant’s sentencing claims and concluded that he was not
entitled to relief. Therefore, we would affirm on the basis of the trial court’s
analysis of this issue. See Trial Ct. Op. at 36-47.
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