Com. v. Cole, A.

J-S36033-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDRAE D.D. COLE :
:
Appellant : No. 1223 EDA 2020
Appeal from the Judgment of Sentence Entered January 6, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002889-2019
BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED APRIL 25, 2022
Andrae D.D. Cole (Appellant) appeals from the judgments of sentence
of the Court of Common Pleas of Philadelphia County imposing an aggregate
term of 15 to 30 years of incarceration for rape by forcible compulsion,
involuntary deviate sexual intercourse (“IDSI”) of a person less than 16 years
of age, aggravated indecent assault without consent, and related offenses. 1
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3121(a)(1), 3123(a)(7), and 3125(a)(1), respectively. The
court also convicted Appellant of rape by threat of forcible compulsion, IDSI
by threat of forcible compulsion, aggravated indecent assault by forcible
compulsion, aggravated indecent assault by threat of forcible compulsion,
indecent assault without consent, indecent assault by forcible compulsion,
indecent assault by threat of forcible compulsion, indecent assault of a person
less than 16 years of age, sexual assault, unlawful contact with a minor,
corruption of minors, endangering the welfare of children, and terroristic
threats. 18 Pa.C.S. §§ 3121(a)(2), 3123(a)(2), 3125(a)(2), 3125(1)(3),
(Footnote Continued Next Page)
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He raises challenges to the sufficiency of the evidence and the legality and
discretionary aspects of his sentence. Upon review, we affirm.
The facts out of which this case arises are described by the trial court
as follows:
On January [2], 201[9], I.C., f[if]teen years old at the time,
reported to her school’s counselor that Appellant, her cousin on
her father’s side, had been sexually abusing her for the last few
years. The counselor promptly called the Philadelphia police and
I.C. made a statement to a female detective in [the police
department’s Special Victims Unit] the same day. I.C. reported
[that] the abuse started soon after her thirteenth (13th) birthday.
Her older sister [T.M.] testified to the same.
I.C. moved into a home shared by Appellant and other members
of Appellant’s family located at 1918 Dennie Street, Philadelphia,
Pennsylvania. August 1st or 2nd of the same year was the first
time Appellant raped I.C. I.C. and Appellant were alone in the
house, sitting next to each other on the couch watching television,
when Appellant bent I.C. over the couch and inserted his penis
into her vagina. This abuse continued repeatedly and in different
rooms of the 1918 Dennie [Street] home, for the next year.
Appellant’s sexual abuse of I.C. evolved from vaginal penetration
to oral when she turned fourteen (14) years old. Appellant
continued his manipulation of I.C. by telling her that he loved her
and that he was close to her. I.C. “thought that’s what people
that love each other do [and] thought it was okay.” Even if I.C.
told Appellant that she did not want to do anything, “it still got
done[.”] Throughout the abuse, I.C. was scared to tell anyone
since Appellant told her that she would “get into trouble, [and] it’s
going to be bad.”
The final rape took place on December 22, 2018[,] at Glenmore
Avenue, Philadelphia, Pennsylvania, I.C.’s father’s home.
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3126(a)(1), 3126(a)(2), 3126(a)(3), 3126(a)(8), 3124.1, 6318(a)(1),
6301(a)(1)(ii), 4304(a)(1), and 2706(a)(1), respectively. The court acquitted
Appellant of recklessly endangering another person under 18 Pa.C.S. § 2705.
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Appellant was home with I.C. and her brother’s girlfriend. When
her brother’s girlfriend left to go to work, not five (5) minutes
later, Appellant proceeded to vaginally penetrate I.C. yet again.
This time, however, he attempted to penetrate her anus with his
penis. I.C. told Appellant that “...I was, like, it hurt. Like, me,
personally, yeah it hurts. Like, that’s painful.” Immediately after
what I.C[.] calls “the nasties” happened, she had to take a warm
bath because it hurt.
On December 23, 2018, I.C. was traveling to Virginia, with some
of her siblings, to spend the Christmas holidays with members of
her mother’s family. It’s on this bus ride that I.C.’s sister [T.M.]
noticed something amiss and began to question I.C. I.C [f]inally
opened up to her sister about the abuse.
Trial Court Opinion, 4/1/21, at 3-4 (notes of testimony citations omitted; parts
cleaned up in brackets). Trial testimony referring to Appellant’s date of birth
permitted the inference that he was twenty-four to twenty-six years of age
during the relevant events. N.T. Trial, 10/31/19, 110.
Appellant proceeded to a non-jury trial. The Commonwealth presented
the testimony of I.C., her sister, and a police officer that interviewed I.C.
Appellant presented testimony from his mother as a fact witness, and
character evidence from his godmother’s son. On October 31, 2019, the court
found Appellant guilty of the above-referenced offenses.2
On January 6, 2020, the court imposed consecutive prison terms of 10
to 20 years for rape by forcible compulsion and 5 to 10 years for IDSI of a
person less than 16 years of age, along with a concurrent prison term of 5 to
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2The parties have not ensured the presence of any of the trial exhibits in the
certified record for this appeal. N.T. Trial, 10/31/19, 114, 133 (referencing
exhibits that were moved into the record).
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10 years for aggravated indecent assault without consent.3 Sentencing Order,
1/6/20, 1-3.4 Appellant timely filed a motion for reconsideration of sentence
that was denied by operation of law. This timely appeal followed.5
Appellant presents the following issues for our review:
1. Was not the evidence insufficient beyond a
reasonable doubt to prove that Appellant committed the crimes of
rape by forcible compulsion, aggravated indecent assault by
forcible compulsion, and indecent assault by forcible compulsion,
where the evidence was insufficient to prove Appellant employed
forcible compulsion against the complainant in committing those
crimes?
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3 With the exception of sexual assault which merged for sentencing purposes,
the court imposed no further penalty for the remaining convictions.
4 The notes of testimony from the sentencing hearing were not originally
included in the certified record. We brought that to the attention of the parties
in an order responding to the parties’ applications seeking to strike the other
party’s brief. At this Court’s direction, Appellant filed an application to correct
the omission in the record. We hereby grant Appellant’s application pursuant
to Pa.R.A.P. 1926.
5 Appellant requested an extension of time for his initial deadline for filing an
ordered statement pursuant to Pa.R.A.P. 1925(b) as he awaited receipt of the
notes of testimony from his sentencing hearing. The trial court never ruled
on the request but implicitly granted it by issuing an opinion responding to the
claims included in the statement Appellant later filed. Pa.R.A.P. 1925(b)(ii).
Accordingly, we deem that Appellant and the trial court have complied with
Rule 1925. Cf. Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super.
2009) (en banc) (concluding that remand was not necessary where the trial
court filed an opinion addressing the issue presented in Burton’s untimely Rule
1925(b) statement).
This Court previously granted Appellant’s application to strike the
Commonwealth’s untimely brief and the Commonwealth’s application to strike
Appellant’s brief due to his use of an unredacted reference to the minor
victim’s name. With leave of court, Appellant has filed a substituted brief.
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2. Was not the evidence insufficient beyond a reasonable
doubt to prove that Appellant committed the crimes of rape with
threat of forcible compulsion, IDSI with threat of forcible
compulsion, aggravated indecent assault with the threat of
forcible compulsion, and indecent assault with threat of forcible
compulsion, where the evidence was insufficient to prove
Appellant made any threats of forcible compulsion against the
complainant in committing those crimes?
3. Did not the trial court abuse her discretion and violate
the Sentencing Code by imposing a manifestly excessive and
unreasonable sentence of 15 to 30 years, three times what the
Commonwealth requested, where the court upwardly departed
from the guidelines without stating adequate reasons on the
record?
Appellant’s Brief at 4 (references to answers of the lower court omitted).
In his first two issues, Appellant challenges the sufficiency of the
evidence supporting his convictions for rape, IDSI, aggravated indecent
assault, and indecent assault that were predicated on the Commonwealth
proving, beyond a reasonable doubt, that he committed those offenses by
forcible compulsion and threat of forcible compulsion. For purposes of these
claims, the Crimes Code defines “forcible compulsion” as “[c]ompulsion by use
of physical, intellectual, moral, emotional or psychological force, either
express or implied.” 18 Pa.C.S. § 3101; see also Commonwealth v.
Eckrote, 12 A.3d 383, 387 (Pa. Super. 2010) (“[O]ur Supreme Court stated
that forcible compulsion includes ‘not only physical force or violence, but also
moral, psychological or intellectual force used to compel a person to engage
in sexual intercourse against that person’s will.’”) (citation omitted).
A challenge to the sufficiency of the evidence requires consideration of
our well-established standard of review:
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The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying [the above] test, we may not
weigh the evidence and substitute our judgment for the fact-
finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances. The Commonwealth
may sustain its burden of 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. Ventura, 975 A.2d 1128, 1142 (Pa. Super. 2009)
(citation omitted). In Pennsylvania, “the uncorroborated testimony of a single
witness is sufficient to sustain a conviction for a criminal offense, so long as
that testimony can address and, in fact, addresses, every element of the
charged crime.” Commonwealth v. Johnson, 180 A.3d 474, 481 (Pa.
Super. 2018); see also 18 Pa.C.S. § 3106 (“The testimony of a complainant
need not be corroborated in prosecutions under [the Sexual Offenses]
chapter.“).
Appellant does not contest that he engaged in sexual relations with I.C.
Instead, he alleges that his crimes were overcharged and the evidence failed
to prove that he forcibly compelled I.C. or threatened her with forcible
compulsion to get her to submit to his sexual acts. Appellant’s Brief at 20-21,
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24-27, 34-35. The Court cannot agree with his assessment of the record.
Upon viewing the trial testimony in the light most favorable to the
Commonwealth as the verdict winner – as dictated by the standard of review
– the Court finds that the evidence proved that defendant used forcible
compulsion and threats of forcible compulsion to compel I.C. to engage in
numerous criminal sex acts with him over a two-year span.
This Court has explained that,
A determination of forcible compulsion rests on the totality of the
circumstances, including but not limited to this list of factors:
the respective ages of the victim and the accused, the
respective mental and physical conditions of the victim and
the accused, the atmosphere and physical setting in which
the incident was alleged to have been taken place, the
extent to which the accused may have been in a position of
authority, domination or custodial control over the victim,
and whether the victim was under duress.
Commonwealth v. Gonzalez, 109 A.3d 711, 721 (Pa. Super. 2015) (added
emphasis removed), citing Commonwealth v. Rhodes, 510 A.2d 1217,
1226 (Pa. 1986).
When forcible compulsion (used or[ ]threatened) consists of
moral, phychological [sic] or intellectual force, the force may be
less tangible but is not less susceptible of proof, and the critical
circumstances and evidence here will be those which tend to prove
or disprove compulsion or lack of consent, i.e. that such force was
used to compel a person to engage in sexual intercourse against
that person’s will.
Rhodes, 510 A.2d at 1227 (internal quotation marks and footnote omitted).
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In Rhodes, a twenty-year old man lured an eight-year-old neighbor,
whom he had known for several years, into an abandoned building and
proceeded to engage in sexual acts with her. In finding sufficient evidence of
forcible compulsion and threats of forcible compulsion, the Rhodes court
reasoned:
There is an element of forcible compulsion, or the threat of forcible
compulsion that would prevent resistance by a person of
reasonable resolution, inherent in the situation in which an adult
who is with a child who is younger, smaller, less psychologically
and emotionally mature, and less sophisticated than the adult,
instructs the child to submit to the performance of sexual acts.
This is especially so where the child knows and trusts the adult.
In such cases, forcible compulsion or the threat of forcible
compulsion derives from the respective capacities of the child and
the adult sufficient to induce the child to submit to the wishes of
the adult (“prevent resistance”), without the use of physical force
or violence or the explicit threat of physical force or violence.
Rhodes, 510 A.2d at 1227.6
In the instant case, there was almost a twelve-year age difference
between Appellant and I.C. Appellant engaged in repeated vaginal and oral
intercourse, and one instance of attempted anal intercourse, with I.C. while
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6 This Court previously noted that “[t]he Rhodes court’s inclusion of types of
forcible compulsion other than physical was a significant change in the law.”
Commonwealth v. Fischer, 721 A.2d 1111, 1115 (Pa. Super. 1998). Within
a year of a subsequent decision in Commonwealth v. Berkowitz, 641 A.2d
1161, 1165 (Pa. 1994), in which the Supreme Court stated that the legislature
intended the term forcible compulsion to mean “something more than a lack
of consent,” the legislature added a definition for forcible compulsion to 18
Pa.C.S. § 3101, that used the language used by the Rhodes court, including
a reference to “moral, emotional or psychological force.” See Fischer, 721
A.2d at 1116-17 (discussing the development of the definition for “forcible
compulsion”).
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he was between the ages of twenty-four and twenty-six and she was between
the ages of thirteen and fifteen. N.T. Trial, 10/31/19, at 9, 47, 110
(referencing their dates of births). This is a case where Appellant actively
lowered the victim’s resistance by piquing her interest in sexual activity by
giving the minor victim the impression that she was in a romantic relationship
with her considerably older, adult cousin. Id. at 25-26, 71-72, 85-86, 98.
While she admittedly said nothing because she was scared during the first
incident of vaginal intercourse, id. at 21, 39, she told him no or that she did
not want to do it “[a] couple times” and he would not listen to her and
proceeded, in any event, to engage in intercourse with her. Id. at 39-40
(I.C.: “He wouldn’t listen to me. I mean, it still get done so there was no
listening there.”); see also id. at 95 (I.C.’s sister testifying that I.C. told her
about an incident “in the living room [where] he bent her over [and] stuck his
thing in there and she had said no and she was uncomfortable with it, but he
continued”).
To ensure his victim’s continued submission to his abuse and avoid
anyone from discovering his course of conduct with her, Appellant told I.C.
that, if she told someone about what was going on, she would “get in trouble”
and it would be “bad.” N.T. Trial, 10/31/19, at 42-43, 78. Those statements
made I.C. feel “scared” and, as a result, she did not “want to make him mad.”
Id. I.C. also acknowledged threats from Appellant that, if she told anyone,
“[h]e was going to leave [her] somewhere far so no one could find [her]” and
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that she “was going to die” or that he would kill her. Id. at 79-80, 84-85.7
The combination of these threats contributed to I.C. submitting to the sexual
acts directed by Appellant. See, e.g., id. at 40-41 (I.C.: “I mean, I mean,
sometimes he would, like, yeah. You got to hold it [referring to his penis] …
Like, because, I would hold it. I didn’t want to get in trouble so I did what I
was told.”); id. at 85 (I.C.: “So it was, like, to scare me into just shutting up.
I just, like, kept my mouth shut anyway, but it was just, like to reassure that
I was going to keep my mouth shut.”).
The evidence of Appellant’s grooming of his minor cousin as a romantic
partner combined with his use of threats to the victim if she told anyone about
them presented a case of emotional, moral, psychological, or intellectual
compulsion that has often been found in circumstances involving a young,
vulnerable victim and a perpetrator who is in a position of authority and trust.
This emotional and psychological coercion constituted forcible compulsion and
the warnings of trouble, abandonment, and death constituted threats of
forcible compulsion. See, e.g., Commonwealth v. Ables, 590 A.2d 334,
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7 Appellant fails to properly review the evidence under the standard of the
review when he asserts that “I.C. never testified to any specific threats [he]
made.” Appellant’s Brief, at 34. When pressed on her testimony that
Appellant told her that she would be in trouble if she told anyone about them,
I.C. addressed specific threats made by Appellant. See N.T. Trial, 10/31/19,
80 (“Q. What did he say the very first time it happened allegedly? A. I was
going to die...”) (emphasis added); id. at 85 (A. “He said that at some point.
He was like, I’m gonna leave you, I’m gonna take you somewhere, I’m gonna
leave you there by yourself.”) (emphasis added); id. (“Q. So when you were
also asked if he said if you tell someone I’ll kill you, were you making that one
up? A. Mm-mm. He said that, like I was a lot younger.”) (emphasis added).
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338 (Pa. Super. 1991) (finding sufficient evidence for forcible compulsion by
emotional exploitation where Ables repeatedly victimized his 13-year-old
niece and told her if she told anyone she would get into trouble);
Commonwealth v. Frank, 577 A.2d 609, 619 (Pa. Super. 1990) (evidence
sufficient to prove that victim submitted to sexual intercourse under forcible
compulsion or threat of forcible compulsion where the adolescent victim,
undergoing therapy, submitted to sexual intercourse with his therapist out of
fear that the therapist would ruin his chances for adoption or would hurt
someone the victim cared about); see also Commonwealth v. Gabrielson,
536 A.2d 401, 407 (Pa. Super. 1988) (“In a case where, as here, a victim is
threatened with physical abuse if she refuses to engage in intercourse with
the assailant even to the point where the victim considers it pointless to resist,
we have held that such conduct demonstrates the use of force and threat of
force sufficiently compelling to meet the statutory threshold of forcible
compulsion.”).
Under the circumstances presented here, we agree with the trial court
that the evidence was sufficient to prove that defendant committed his
offenses by psychological and emotional forcible compulsion and threats of
forcible compulsion. We find the significant age difference between Appellant
and the victim, I.C.’s stated fears preyed on by Appellant’s threats, along with
Appellant’s status as the victim’s older cousin and his efforts to craft a
supposed romantic relationship with the victim provided Appellant with the
opportunity and authority needed to compel I.C. to submit to his will. The
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combined evidence sustained Appellant’s convictions. Accord
Commonwealth v. Dorman, 547 A.2d 757, 761-62 (Pa. Super. 1988)
(evidence sufficient for forcible compulsion where 38-year-old Dorman had
intercourse with his 13-year-old niece; location of the crime in a remote
wooded area where Dorman drove the victim, the victim’s protest of “don’t,”
Dorman’s disrobing of the victim, and Dorman’s position as the victim’s uncle
was sufficient evidence, notwithstanding the victim’s lack of more “strenuous
resistance”).
Appellant’s remaining issues present challenges to the legality and
discretionary aspects of his sentence. With respect to the former issue,
Appellant claims that his convictions for rape, aggravated indecent assault,
and indecent assault involving both forcible compulsion and threat of forcible
compulsion should have merged for sentencing purposes. Appellant’s Brief at
27 n.36. Even though this claim was raised for the first time in Appellant’s
statement of issues presented pursuant to Pa.R.A.P. 1925(b), we can review
this claim since inquiry into the legality of a sentence is a non-waivable matter
when this Court is properly vested with jurisdiction. Commonwealth v.
Wolfe, 140 A.3d 651, 660 (Pa. 2016) (“legality-of-sentence claims are not
subject to the traditional waiver doctrine.”); see also Commonwealth v.
Tanner, 61 A.3d 1043, 1046 (Pa. Super. 2013) (whether crimes merge for
sentencing purposes implicates the legality of sentence, which this Court can
raise sua sponte); Commonwealth v. Borovichka, 18 A.3d 1242, 1254 n.8
(Pa. Super. 2011) (stating, “[a] challenge to the legality of a sentence … may
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be entertained as long as the reviewing court has jurisdiction”). Our standard
of review for a legality of sentence claim is de novo and our scope of review
is plenary. Tanner, 61 A.3d at 1046.
Merger of sentences is governed generally by Section 9765 of the
Sentencing Code, which provides:
§ 9765. Merger of sentences
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 preliminary consideration is whether the facts on
which both offenses are charged constitute one solitary criminal act. If the
offenses stem from two different criminal acts, merger analysis is not
required.” Commonwealth v. Healey, 836 A.2d 156, 157-58 (Pa. Super.
2003) (citation omitted); see also Commonwealth v. Robinson, 931 A.2d
15, 25 (Pa. Super. 2007) (en banc) (the focus on differentiating between
single and multiple criminal acts for merger claims “is designed to prevent
defendants from receiving a ‘volume discount on crime’”) (citation omitted).
Here, Appellant’s merger argument fails because he committed different
acts to establish each of the elements of rape, aggravated indecent assault,
and indecent assault involving both forcible compulsion and threat of forcible
compulsion. His charging documents informed him that the rape charges
concerned sexual intercourse with the victim, the aggravated indecent assault
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charges concerned penetration, however, slight of the victim’s genitals or
anus, and the indecent assault charges concerned either the victim having
indecent contact with Appellant or the victim having contact with seminal fluid,
urine, or feces. Bills of Information, 4/26/19. For all of those charges, the
range of dates for the offenses was listed as “January 1, 2015 to December
22, 2018.” Id. As explained above, defendant employed different forms of
forcible compulsion and threats of forcible compulsion to engage in intercourse
with the victim.
Moreover, the trial evidence demonstrated that Appellant had vaginal
intercourse with the victim for “[l]ike a year,” starting when she was 13, and
then he proceeded to engage in oral intercourse with her at age 14, until the
abuse ended with an incident of vaginal intercourse and attempted anal
intercourse on December 22, 2018. N.T. Trial, 10/31/19, at 20-26, 31-33.
I.C. noted that that the vaginal intercourse happened in various rooms of
Appellant’s mother’s home and the anal intercourse incident happened at her
father’s home. Id. at 26, 30. I.C. testified prior to trial that the acts of abuse
happened at least twenty times, told the police “that it got to the point where
it would happen four times a month,” and testified at trial that it happened
“really, really often.” Id. at 72-73. Accordingly, under the facts presented,
it is clear that Appellant’s convictions were sustained by multiple criminal acts
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and merger does not apply.8 See, e.g., Commonwealth v. Snyder, 870
A.2d 336, 349-50 (Pa. Super. 2005) (counts of rape and involuntary deviate
sexual intercourse did not merge for sentencing purposes; the convictions
were supported by separate facts, as there were at least five locations where
a sexual encounter occurred, and more than four separate occasions which
would support a conviction for both rape and involuntary deviate sexual
intercourse and Snyder was charged with only two counts each of rape and
IDSI); see also Commonwealth v. Belsar, 676 A.2d 632, 634 (Pa. 1996)
(“When a criminal act has been committed, broken off, and then resumed, at
least two crimes have occurred and sentences may be imposed for each. To
hold that multiple assaults constitute only one crime is to invite criminals like
Belsar to brutalize their victims with impunity.”)
Lastly, Appellant argues that the trial court abused its discretion by
imposing an excessive aggregate sentence and failing to state adequate
reasons for imposing a sentence for rape that departed upward from the
recommendation of the Sentencing Guidelines.9 Appellant’s Brief at 35-39.
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8 We acknowledge that the trial court conceded in its opinion that the charges
premised upon threats of forcible compulsion should have merged with the
related charges premised upon forcible compulsion. Trial Court Opinion,
4/1/21, at 11. The trial court, however, never provided this Court with any
analysis for that conclusion.
9 For the offenses upon which the court imposed sentences, we note that the
guidelines recommended minimum imprisonment terms of 48 to 66 months,
plus or minus 12 months for aggravating or mitigating circumstances, for rape
by forcible compulsion and IDSI of a person less than 16 years of age, and 22
(Footnote Continued Next Page)
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He also claims that the court chose to “aggravate” his sentence because he
declined to offer an allocution statement. Id. at 39-41.
There is no absolute right to appellate review of a discretionary
sentencing claim. Commonwealth v. Solomon, 247 A.3d 1163, 1167 (Pa.
Super. 2021) (en banc). Rather,
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence; see
Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect,
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, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa. Super. 2018)
(citation omitted). Following satisfaction of all four elements, this Court then
reviews the underlying discretionary aspects of sentencing issue, pursuant to
an abuse of discretion standard. Commonwealth v. Akhmedov, 216 A.3d
307, 328-29 (Pa. Super. 2019) (en banc).
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to 36 months, plus or minus 12 months for aggravating or mitigating
circumstance, for aggravated indecent assault without consent. N.T.
Sentencing Hearing, 1/6/20, 6 (noting the recommended ranges for rape by
forcible compulsion and IDSI of a person less than 16 years of age and that
Appellant had a prior record score of zero); 204 Pa. Code § 303.15 (Offense
Listing; 7th Ed., Amend. 4); 204 Pa. Code § 303.16(a) (Basic Sentencing
Matrix; 7th Ed., Amend. 4). The trial court imposed an above-the-guidelines
maximum imprisonment term for rape by forcible compulsion, a consecutive
standard guidelines-range sentence for IDSI of a person less than 16 years of
age, and a concurrent above-the-guidelines maximum imprisonment term for
aggravated indecent assault without consent. 18 Pa.C.S. § 1103 (providing
the maximum imprisonment terms for felonies).
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Here, we find no procedural impediment to substantive review.
Appellant timely filed a notice of appeal within two days of his timely-filed
post-sentence motion being denied by operation of law. Pa.R.Crim.P.
720(A)(2)(b). His claim was also preserved in his timely-filed post-sentence
motion, in which he challenged both the length of his sentence and the
adequacy of the court’s statement of reasons for the sentence. Post-Sentence
Motion, 1/16/20, ¶¶ 4-5 (“The sentence was unreasonable and manifestly
excessive … Although Petitioner exercised his right to remain silent at
sentencing, and no other witnesses testified, Your Honor cited as aggravating
factors that Petitioner showed no remorse and that there was ‘continued
denial.’ No evidence of either of these were presented at the sentencing
hearing.”). Lastly, Appellant included a statement required by Pa.R.A.P.
2119(f) in his brief and cited prior opinions establishing that his claim presents
a substantial question for review. Appellant’s Brief at 14-17, citing, inter alia,
Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa. Super. 2007) (en banc)
(finding that Robinson’s claim that a court imposed an unreasonable and
excessive sentence, outside of the guidelines, without providing an adequate
explanation raised a substantial question). We thus turn to the merits.
Our standard of review regarding challenges to the discretionary aspects
of sentencing is well settled:
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 error in judgment. Rather,
the appellant must establish, by reference to the record, that the
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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.
Commonwealth v. Moye, 266 A.3d 666, 676-77 (Pa. Super. 2021) (citation
omitted). This deferential standard is based on the recognition that “the
nuances of sentencing decisions are difficult to gauge from the court transcript
used upon appellate review.” Commonwealth v. Perry, 32 A.3d 232, 236
(Pa. 2011), quoting Commonwealth v. Walls, 926 A.2d 957, 961-62 (Pa.
2007).
In reviewing a record to determine if the sentencing court abused its
discretion, the Sentencing Code instructs this Court to consider the nature of
the circumstances of the crime; the history and characteristics of the
defendant; the sentencing court’s findings as well as the court’s opportunity
to observe the defendant, including through presentence investigation; and
the sentencing guidelines. See 42 Pa.C.S. § 9781(d).
The Sentencing Code additionally instructs sentencing courts to consider
“the protection of the public, the gravity of the offense as it relates to the
impact on the life of the victim and on the community, and the rehabilitative
needs of the defendant.” 42 Pa.C.S. § 9721(b). “The balancing of these
Section 9721(b) sentencing factors is within the sole province of the
sentencing court.” Commonwealth v. Velez, --- A.3d ----, 2022 WL 964170,
*2 (Pa. Super., filed Mar. 31, 2022) (citation omitted).
The sentencing court must also consider the sentencing guidelines when
sentencing a defendant. See 42 Pa.C.S. § 9721(b). “However, the sentencing
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guidelines are purely advisory in nature – they are not mandatory.” Velez, -
-- A.3d ----, 2022 WL 964170, at *3 (citation omitted). A court may therefore,
as an act of discretion, sentence defendants outside the guidelines’
recommendations so long as their sentence does not exceed the maximum
sentence allowed by statute. Id. When a court deviates from the Sentencing
Guidelines, it must state the reasons for doing so on the record. Id. This
Court shall vacate a sentence if it finds, inter alia, that the “sentencing court
sentenced outside the sentencing guidelines and the sentence is
unreasonable.” 42 Pa.C.S. § 9781(c)(3).
“Further, the weight accorded to the mitigating factors or aggravating
factors presented to the sentencing court is within th[at] court’s exclusive
domain.” Velez, --- A.3d ----, 2022 WL 964170, at *3 (citation omitted). In
Walls, our Supreme Court “specifically admonished that … an appellate court
could not substitute its own weighing of those factors.” Commonwealth v.
Bowen, 975 A.2d 1120, 1123 (Pa. Super. 2009), citing Walls, 926 A.2d at
966. When a court possesses a presentence investigation report, it is
presumed that the court “was aware of the relevant information regarding
defendant’s character and weighted those considerations with mitigating
statutory factors.” Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).
Appellant initially argues that his sentence was excessive and
unreasonable. Appellant’s Brief at 35-36. Beyond pointing out that his rape
sentence constituted an upward departure from the term recommended by
the Sentencing Guidelines, he highlights that his aggregate sentence was
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three times the sentence requested by the Commonwealth and he asked the
trial court to consider mitigating factors including that he had no prior criminal
record, he elected to waive his right to a jury trial, he had “a lot of family
support,” and an “extensive work history.” Id. at 35-38. For multiple
reasons, this Court cannot agree with his characterization of his sentence as
excessive and unreasonable.
First, pursuant to Devers, we cannot find that the court abused its
discretion by not properly weighing his mitigating sentencing factors because
the court had a presentence investigation report and thus is presumed to have
been aware of the relevant information regarding his character and weighted
those considerations along with the mitigating statutory factors. N.T.
Sentencing Hearing, 1/6/20, 5 (trial court referencing its possession of the
presentence investigation report); Devers, 546 A.2d at 18; see also
Commonwealth v. Horning, 193 A.3d 411, 419 (Pa. Super. 2018).
Second, the comparison of the aggregate sentence with the sentences
recommended by the Sentencing Guidelines and the Commonwealth do not
establish an abuse of discretion as a matter of law. As an initial matter, the
guidelines are only relevant for comparison with the minimum terms for each
of the individual judgments of sentence, 204 Pa. Code § 303.9(e), and, as
noted above, the guidelines are only advisory. Because the second part of
Appellant’s argument involves the trial court’s reasons for departing from the
guidelines for the rape sentence, we will defer the discussion of whether the
court stated proper reasons for an upward departure infra. To the extent that
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Appellant argues that the court abused its discretion by imposing a sentence
in excess of what the Commonwealth requested, we note that the trial court
was not cabined by the prosecution’s recommendation. See, e.g.,
Commonwealth v. Sexton, 222 A.3d 405, 422 (Pa. Super. 2019) (“With
regard to Appellant’s assertion that the court erred in imposing a sentence
which exceeded one recommended by the Commonwealth, the
Commonwealth’s recommendations, or lack thereof, are not binding on the
trial court’s exercise of discretion at sentencing.”).
Third, the Court cannot agree with Appellant because he fails to review
his aggregate sentence in the context of the totality of the circumstances in
his case. The sentence is unquestionably high: it contains a maximum
imprisonment term, plus a consecutive standard-guidelines-range prison
term. If the same sentence had been imposed on a defendant with no prior
criminal record and the charges in question arose from a single criminal
incident, this Court would be inclined to agree with his characterization of the
sentence as excessive. The trial court, however, appears to have acted within
its discretion by imposing this sentence because the crimes in this case
occurred during a continuing campaign of sexual abuse of a minor victim over
a two-year span which involved, at a minimum, twenty instances of abuse
and, at times, happened on a weekly basis. N.T. Trial, 10/31/19, at 72-73.
Additionally, the court’s opinion suggests that it chose the term because it was
consistent with the gravity of the offenses as they related to the impact on
the life of the victim:
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The court’s observations showed that Appellant did this to a
vulnerable child who had no way of consenting to or
understanding what was being done to her and who has been left
to live with their trauma ever since. Appellant egregiously
exploited the child’s trust in him to commit criminal acts against
her.
Trial Court’s Opinion, 4/1/21, 11.
Where Appellant, as a 24 to 26-year-old, committed at least twenty acts
of sexual abuse involving intercourse with his 13 to 15-year-old cousin, and
used a combination of romantic grooming and specific threats to accomplish
those crimes, the Court cannot agree that the trial court imposed an excessive
term by imposing two consecutive terms of imprisonment, one of which
included a maximum imprisonment term. See Commonwealth v. Prisk, 13
A.3d 526, 533 (Pa. Super. 2011) (holding that a sentence of 633 to 1,500
years’ imprisonment for 314 offenses, including multiple counts of rape,
involuntary deviate sexual intercourse, and indecent assault, was not
excessive; Prisk was convicted of sexually abusing his step-daughter between
2001 and 2007, starting when his victim was 10 years old, and his offenses
occurred on an almost daily basis; noting that Prisk was not entitled to a
“volume discount” for multiple offenses); see also Commonwealth v.
Davis, 241 A.3d 1160, 1182 (Pa. Super. 2020) (finding no abuse of discretion
for the imposition of four consecutive robbery sentences where Davis
committed robberies of five people during a single armed home invasion
incident; noting agreement with the trial court that Davis was not entitled to
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a “volume discount” by having all of his sentences run concurrently);
Commonwealth v. P.L.S., 894 A.2d 120, 133 (Pa. Super. 2006) (effect of
ongoing sexual abuse that occurred on a weekly basis for two years and that
P.L.S.’s attempted effect to justify his actions on the basis that they were in
retaliation against the victim’s mother offered support for sentencing in excess
of the recommendations of the Sentencing Guidelines).
In the remainder of his argument, Appellant asserts that the trial court
failed to state adequate reasons for departing upwards from the
recommendations of the Sentencing Guidelines for his convictions for rape by
forcible compulsion and aggravated indecent assault without consent.
Appellant’s Brief, at 37-42. To deviate from the recommendations of the
guidelines, “the sentencing court must demonstrate, on the record, its
awareness of the sentencing guidelines and offer a contemporaneous written
statement of the reason” for its deviation. Commonwealth v. Wallace, 244
A.3d 1261, 1279 (Pa. Super. 2021), citing, inter alia, 42 Pa.C.S. § 9721.
Here, the court was informed on the record by the prosecutor of the
applicable guideline ranges for the lead offenses that formed the basis for
Appellant’s aggregate sentence. N.T. Sentencing Hearing, 1/6/20, 6. The
court prefaced its imposition of the sentence by stating, “Then based upon the
testimony presented in this hearing, taking into consideration the age of the
child at the occurrence of the incident, the lack of remorse, the continued
denial, I’m issuing the following sentence.” Id. at 10-11.
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Appellant’s challenge to the adequacy of that statement of reasons is
three-fold. He initially rejects the importance of the court’s reference to the
“testimony presented in this hearing” because no testimony was presented at
the sentencing hearing. Appellant’s Brief, at 38. He then alleges that the
court’s reference to “the age of the child” was a form of double-counting of
sentencing factors already considered by the Sentencing Guidelines because
there was an age-related element for his conviction for IDSI of a person less
than 16 years of age. Id. at 38-39. He concludes by asserting that the stated
reasons of “lack of remorse” and “continued denial” were references to the
fact that he chose not to make an allocution statement, and were thus proof
that the court improperly chose to deviate from the guidelines “based on [his]
silence at sentencing.” Id. at 39-41. These arguments are unavailing.
Brief as they are, the court’s comments constituted an adequate
statement of reasons for the departure from the guidelines.10 Because the
prosecution informed the court of the correct applicable guideline ranges for
the lead offenses, and the court then exceeded the recommended range for
the rape sentence after contemporaneously stating multiple grounds for
departing from the guidelines’ recommendation, we can discern from the
____________________________________________
10 We remind the trial court, however, that “[i]t is better practice for the court
to include in its statement of reasons for the sentence some reference to the
guidelines specified in the Sentencing Code, with some explanation of how
consideration of those guidelines affected the determination of sentence.”
Commonwealth v. Franklin, 446 A.2d 1313, 1317 (Pa. Super. 1982). At
the same time, we should not hold a statement of reasons insufficient “when
it is apparent that even though the court made no reference to the guidelines,
it did consider and apply them.” Id.- 24 -
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record before us that the sentencing court understood the applicable
sentencing guideline ranges and that it was deviating from them, prior to
fashioning Appellant’s sentence.
We also find that the trial court offered multiple acceptable reasons for
a deviation. To the extent that the court relied on the age of the victim as an
aggravating sentencing factor, the consideration of that fact for purposes of
Appellant’s rape by forcible compulsion sentence did not result in double
counting of factors already considered by the guidelines because the age of
the victim was not an element of the offense at 18 Pa.C.S. § 3121(a)(1).11
See Commonwealth v. Gause, 659 A.2d 1014, 1017 (Pa. Super. 1995)
(“The rape statute applies to a victim of any age.”). That the victim was only
13 years old when Appellant’s abuse of her started was an acceptable
sentencing factor for consideration of a deviation from the guidelines. See
Walls, 926 A.2d at 967 (holding that the age of a victim, there seven, for the
offenses of rape and IDSI of a person less than 13 years old was among the
____________________________________________
11The same is true for the above-guidelines sentence for aggravated indecent
assault without consent under 18 Pa.C.S. § 3125(a)(1).
While Appellant treats the precise age of the victim as an element of IDSI of
a person less than sixteen years of age for purposes of his double-counting
factors argument, we would also point out that our Supreme Court has held
otherwise concerning the treatment of a precise age as a sentencing factor.
See Walls, 926 A.2d at 967 (“the fact that the victim was only seven-years-
old at the time of the sexual abuse, was not an element of rape or IDSI of a
victim less than thirteen years old and could justify an above-guidelines
sentence”). That point is only instructive in this instance because the trial
court did not deviate from the guidelines when it sentenced Appellant for IDSI
of a person less than 16 years of age.
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permissible factors for the court’s imposition of maximum sentences in excess
of the Sentencing Guidelines); Commonwealth v. Durazo, 210 A.3d 316,
324 (Pa. Super. 2019) (“nothing prevents the court from considering the
extreme age difference of the victim”).
Lack of remorse was also another acceptable consideration for a
deviation. See Commonwealth v. Begley, 780 A.2d 605, 644 (Pa. 2001)
(noting lack of remorse, as a sign of the defendant’s character, is an
appropriate consideration for sentencing outside of the guidelines);
Commonwealth v. Summers, 245 A.3d 686, 695 (Pa. Super. 2021) (“Lack
of remorse is an appropriate sentencing consideration.”). Nothing in the
record supports Appellant’s argument that the court’s reference to a lack of
remorse was a response to his decision not to offer an allocution statement or
an infringement on his right to silence. The trial court explains in its opinion
that the lack of remorse comment derived from the court’s observation of
Appellant’s body language at trial and sentencing. Trial Court Opinion, 4/1/21,
11 (“Next, the trial court, with her 10+ years of jurisprudence, had the
opportunity to observe the Appellant throughout the course of the trial and
sentencing, and keenly observed a lack of remorse through Appellant’s body
language.”).
Appellant does not address the court’s discussion of his body language
in its opinion. Even assuming that he did, we would necessarily defer to the
trial court’s finding in those respects, under the standard of review, because
the intricacies of body language are not apparent from the cold record, and
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thus it could not be meaningfully addressed by this Court. See
Commonwealth v. Colon, 102 A.3d 1033, 1043 (Pa. Super. 2014) (citation
omitted) (“In determining whether a sentence is manifestly excessive, [we]
must give great weight to the sentencing court’s discretion, as he or she is in
the best position to measure factors such as the nature of the crime, the
defendant’s character, and the defendant’s display of remorse, defiance, or
indifference.”).
As for the court’s reference to the “testimony presented in this hearing,”
we agree with Appellant that that reason on its face appears to be nonsensical
because no testimony was ever elicited at the sentencing hearing. At the
same time, however, we do not find that be an improper sentencing factor
because the trial court’s opinion suggests that the comment was actually an
inartful reference to the trial testimony, and in particular, to the victim’s
testimony. See Trial Court Opinion, 4/1/21, 11 (“First, the trial court
considered the victim’s testimony and her reaction to the situation.”). The
court elaborated on this factor when it addressed its observations of the victim
and Appellant’s exploitation of the victim’s trust in him. Id. The court’s
consideration of the significant trauma that Appellant caused the minor victim
to suffer during the two-year campaign of abuse as an aggravating sentencing
factor was not an abuse of discretion. See, e.g., Commonwealth Sheller,
961 A.2d 187, 192 (Pa. Super. 2008) (among the proper reasons considered
for an upward departure from the sentencing guidelines for a voluntary
manslaughter sentence was trauma suffered by the victim’s twelve-year-old
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child caused by her discovery of her mother’s body); Commonwealth v.
Impellizzeri, 661 A.2d 422, 433 (Pa. Super. 1995) (statement referring to,
inter alia, that a rape victim experienced extreme emotional trauma satisfied
the requirement for stating reasons on the record for exceeding the
Sentencing Guideline’s recommendation).
To the extent that the trial court cited “continued denial” in its statement
of reasons for the sentence, the court does not address that reason in its
opinion. We decline to find that the phrase was proof that the trial court
imposed an upward departure sentence to punish defendant for the exercise
of his constitutional rights, as in Commonwealth v. Bethea, 379 A.2d 102(Pa. 1977), because the court left the phrase so undefined that this Court
cannot infer what the trial court was referring to as being denied. If the court
had referred to a continued denial of guilt, where defendant exercised his
rights to not incriminate himself or engage in allocution, we would have found
merit to Appellant’s claim pursuant to Bethea. Since the phrase used by the
court was so vague that it conveyed no appreciable meaning, we decline to
put additional words into the trial court’s statement in order to find an error.
Even assuming that the utterance of “continued denial” was an improper
sentencing factor, provided that it was not just another reference to the body
language leading the court to infer a lack of remorse, we cannot conclude that
the consideration of that reason resulted in an abuse of discretion because, as
addressed above, the court considered other independently valid reasons for
imposing a sentence departing upward from the recommendations of the
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Sentencing Guidelines. See Commonwealth v. Smith, 673 A.2d 893, 895-
96 (Pa. 1996) (where departure sentence was justified by independently valid
reasons, even though impermissible sentencing factor also was employed in
support, sentence must be affirmed); see, e.g., P.L.S., supra, 894 A.2d at
133 (holding, in the alternative, that even if a trial court improperly considered
uncharged conduct as a sentencing factor, an upward departure sentence was
not an abuse of discretion because the court offered significant other support
for the sentence including that the “Appellant sexually abused his victim nearly
weekly for two years” and “the effect of this ongoing sexual abuse was
substantial and long-term”).
Here, the sentence issued to Appellant, though substantial, was
supported by an adequate statement of reasons by the court and was not an
abuse of discretion.
Judgments of Sentence affirmed. Appellant’s application to correct an
omission in the record pursuant to Pa.R.A.P. 1926 granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/25/2022
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