Com. v. Smith, E.

J-S06022-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

ENOCH SMITH

Appellant No. 277 EDA 2014

Appeal from the Judgment of Sentence July 22, 2013
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0004422-2012
CP-09-CR-0007731-2012

BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 06, 2015

Enoch Smith appeals from the judgment of sentence entered in the

Court of Common Pleas of Bucks County following his jury trial and

conviction on charges of Corrupt Organizations,1 Promoting Prostitution,2

Criminal Use of Communication Facility,3 Manufacture, Delivery or

Possession with Intent to Deliver a Controlled Substance,4 Conspiracy,5

____________________________________________

*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 911(b)(3).
2
18 Pa.C.S. § 5902(b)(1)-(4), (6).
3
18 Pa.C.S. § 7512.
4
35 P.S. § 780-113(a)(3).
J-S06022-15

Rape6 and Sexual Assault.7 After our review, we affirm the judgment of

sentence and rely on the opinion authored by the Honorable Wallace H.

Bateman, Jr.

The trial court’s opinion sets forth the facts of this case in detail. See

Trial Court Opinion, 5/16/14, at 1-10. To summarize, Smith conducted a

prostitution enterprise in Bensalem Township, Bucks County, and in

Philadelphia County, preying upon and exploiting young women who were

addicted to drugs. Smith provided the women with heroin to feed and

maintain their addiction, and in exchange required them to serve as

prostitutes. At trial, four of Smith’s “employees” testified; they stated that

they were paid in drugs and if they did not have sufficient dates they had to

have sex with Smith or suffer withdrawal. One woman testified that at the

time she started working for Smith she had just turned 19 and had never

done this type of thing before; after her second “client” she told Smith she

would no longer work for him. In response, Smith became angry and raped

her.

Following Smith’s convictions and a determination that he was a

sexually violent predator (SVP), Judge Bateman sentenced him to a term of

_______________________
(Footnote Continued)
5
18 Pa.C.S. § 903(a)(1).
6
18 Pa.C.S. § 3121(a)(1).
7
18 Pa.C.S. § 3124.1.

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J-S06022-15

imprisonment of 40 to 80 years. Smith filed post-sentence motions, which

Judge Bateman denied. This appeal followed. Smith raises the following

issues for our review:

1. Did the trial court commit an error of law or abuse of
discretion by improperly considering and failing to disregard in
total a presentence investigation report produced from the Bucks
County Adult Probation and Parole Department wherein the
conclusions and averments in the report were tainted by the
inclusion of an interview with the appellant conducted in
violation of his privilege against self-incrimination guaranteed
under the Fifth Amendment of the United States Constitution and
Article I, section 9 of the Pennsylvania Constitution?

2. Whether the sentencing court’s imposition of an aggregate
sentence of not less than forty years nor more than eighty years’
incarceration on information numbers 4422/2012 and 7731/2012
was unreasonable and manifestly excessive in that the
aggregated sentences exceeded the aggravated range of
sentencing [guidelines] and violated the fundamental norms of
sentencing in that the sentencing court failed to properly
consider the rehabilitative needs of the appellant under 42
Pa.C.S.A. § 9721(b)?

3. Did the trial court commit an error of law or abuse of
discretion in declining to approve the appellant’s presentence
request for the retention of a forensic psychologist/psychiatrist
expert to assess the appellant’s mental condition, mental health
considerations in sentencing, drug and alcohol assessment, drug
and alcohol considerations in sentencing, psychosocial history,
educational history, vocational history, the appellant’s potential
for rehabilitation and to rebut the presentence investigation and
SVP report relied upon by the court in imposing sentence?

4. Whether the trial court erred as a matter of law or abused its
discretion in granting the Commonwealth’s motion to consolidate
information numbers 4422/2012 and 7731/2012?

5. Whether the trial court erred as a matter of law in denying the
appellant’s pretrial objection to venue in criminal information
number 7731/2012?

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J-S06022-15

6. Whether the trial court erred as a matter of law or abused its
discretion in denying the appellant’s post-sentence motion for
judgment of acquittal or new trial on the grounds that the
verdict of guilt as to the charges of rape by forcible compulsion
and sexual assault was against the weight of the evidence as the
convictions improperly rested upon the contradictory and
uncorroborated testimony of Commonwealth witness J.S.?

We have reviewed the transcripts, briefs, relevant law and Judge

Bateman’s opinion, and we find that Judge Bateman’s opinion thoroughly

and correctly disposes of the issues Smith raises on appeal. See Trial Court

Opinion, at 13-25. Specifically, the record supports the court’s

determination that ordering Smith to submit to a presentence interview for

the presentence investigation report did not violate Smith’s Fifth Amendment

privilege against self-incrimination. See Commonwealth v. Carrillo-Diaz,

64 A.3d 722 (Pa. Super. 2013) (first responsibility of sentencing court is to

have sufficient information to enable determination of circumstances of

offense and character of defendant; thus, sentencing judge must either

order presentence investigation (PSI) report or conduct sufficient

presentence inquiry such that, at minimum, court is apprised of particular

circumstances of offense, not limited to those of record, as well as

defendant's personal history and background); see also Commonwealth

v. Moore, 583 A.2d 1 (Pa. Super. 1990), quoting Hoffman v. United

States, 341 U.S. 479 (1951) (Fifth Amendment “protects individuals from

being coerced to give testimonial evidence which would be incriminating in

the sense of furnishing ‘a link in the chain of evidence needed to

prosecute.’”).

-4-
J-S06022-15

Further, with respect to the court’s sentence beyond the aggravated

range of the guidelines, we point out that Judge Bateman explained his

sentence in detail at the sentencing hearing. See Sentencing Hearing,

7/22/13, at 85-95. Judge Bateman considered the sentencing guidelines,

the nature and circumstances of the offenses, the impact on the victims and

their families, Smith’s history and character, his rehabilitative needs, the

presentence investigation and the report of a forensic psychologist. Judge

Bateman also noted that this was the worst case of parasitic and exploitive

behavior he had seen in thirty years and that Smith showed a complete lack

of remorse, stating:

Your life has been based upon drugs and theft and selling
women. Again, quoting Dr. Shanken-Kaye, this parasitic lifestyle
is something that has continued and will continue if you are not
dealt with either by me or another Judge, or if by some
rehabilitative setting. I don’t think you’re capable of changing
your ways as Dr. Shanken-Kaye indicates, intensive lifetime
treatment. . . . You exploited [these women]. You degraded
them. I have to say, this is perhaps one of the worse cases I’ve
been around in over 30 years as a lawyer and a judge. The
exploitation and the degradation of women to the point where
they were locked in a room and given their morning wake-up call
for drugs. The morning wake up. They got no money. They
just got drugs, and the drugs made their condition worse and
worse. . . . That is how you kept them. . . . So you’ve
demonstrated through your conduct that this is a serious offense
and you have no regard and in my judgment, for anyone else,
and the likelihood of you re-offending is in my judgment virtual
certainty without proper treatment.

Id. at 92-93. We find no manifest abuse of discretion. See

Commonwealth v. Bowen, 975 A.2d 1120 (Pa. Super. 2009).

-5-
J-S06022-15

With respect to Smith’s claim that the court erred in failing to approve

his request, prior to sentencing, for retention of a psychologist to assess his

mental condition, the court notes it did approve this request at sentencing

and considered the psychologist’s report in determining Smith’s motion for

modification of sentence. With respect to his challenges to venue, the

court’s consolidation of the criminal informations, and the court’s

determination that the sexual assault and rape convictions were not against

the weight of the evidence, Smith has failed to establish that Judge Bateman

abused his discretion.

Accordingly, we affirm the judgment of sentence based on Judge

Bateman’s opinion. We direct counsel to attach a copy of the trial court

opinion in the event of further proceedings in this matter.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/6/2015

-6-
 IN 1HE COURT OF COMMON PLEAS OF BUCKS COUNTY. PENNSYLVA<'1lA
CRlMlNAL DIVISION

COMMONWEALTH OF PENNSYLV ANlA No. 7731120 13
442212012
vs.

ENOCH SMITH

OPlNION

Defendant Enoch Smith (hereinafter "Appellant") appeals to the Superior Court of

Pennsylvania from this Court's denial of Appellant's Motion to Modify and Reconsider Sentence

as well as this Court's Denial of Appellant's supplemental post-sentence Motion for Judgment of

ACquittal entered on December 24, 2013. We file this Opinion pursuant to Pennsylvania Rule of

Appellate Procedure (pa.R-A.P.) 1925(a).

FACTUAL AND PROCEDURAL HISTORY

In 2011.23 year ol{Enn O' ColWJ'll-began working for Appellant (N.T. 4124113. p. 7).

She testified that she was already working as a prostitute on Kensington Avenue in Philadelphia

when she met Appellant. According t,6 Erin. ~pellant would go up and down Kensington

Avenue looking for girls that were "posted up" (N.T. 4124/13. p. 7). The girls would sland on

certain comCfS or specific,spots on Kensington A venue and Appellant would stop and talk to

them and let them know what he could offer if they were to work for him (N.T. 4124/13. p. 9).

At the time Erin O'Connell encountered Appellant, she had been thrown out of her family home

due to her addiction to drugs (N.T. 4124/13. p. 9). Appellant told Erin that he could provide her
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with a place to stay. food, and clothes. if she were to work for him (N.T. 4124/13. p. 10). Erin

decided to work for Appellant and lived at Appellant' s apartment in Philadelphia on Luzerne

Street (N.T. 4124/ 13. p. II). Enoch took pictures of Erin posing in lingerie that he provided for

1

~ - --. - ..-.-.-_. -~ -....-.. -. -.---
 "

Backpage ads (N,T, 4/24/ 13, p, 22), Backpage was an advertisement site that allowed Appellant

to post provocative pictures of women with a phone ntuDber [or men to call. Appellant told Erin

that sbe would beve "dates" and Erin would have to give Appellant the money from the dates, In

return, be would provide her with 40% of her earnings in drugs, specifically heroin and crack

(N,T, 4/24/ 13, pp, 12-13), Appellant also told Erin that sbe was not allowed to go on dates with

black men because he believed they were aggressive and cbeap (N,T, 4/24113, p, 13), Erin

testified that the most men she saw in a 24-hour period was 12dates (N,T, 4/24/13 , p, 14),

Appellant told Erin that she was one of his highest income earners and that she "worked like a

horse," (N,T, 4124113, p, 15), Around February or March of2012, Appellant moved Erin and the

other girls she lived with in Philadelphia to hotels in Bucks County, specifically the Ramada,

Radisson, and the Knights Inn (NT 4124/13, p, 15),

Erin testified that if it were a particularly slow day and she did not have any dates, her

body would go through withdrawal (NT 4/24/13, p,J8), When this occurred, she would ask

Appellant for drugs and she would pay him back (N,T, 4/24113, p, 19), Sometimes, Erin would

have to pay Enoch back in sexual favors, such as oral sex or sexual intercourse (N.T. 4124/13, p.

19), According to Erin, Appellant carried tbe medication ',' Narcon" on him, which is

administered if someone was overdosing (N,T, 4/24/13, p, 21), Appellant provided Erin with

syringes, pipes, lingerie, press-on nails, heels, underwear, and anything else she needed (N.T.

4/24/13 , pp , 21-24), Appellant also provided the women with pre-paid phones to use when

receiving calls for dates (N,T, 4/24113, p, 30),

J anay Sheehy met Appellant in December of 20 II after being discharged from a halfway
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house in Philadelphia due to a heroin relapse (N,T, 4/24113, p, 58, 66), She was nineteen years

old at the time (NT 4/24/13, p, 59), Appellant offered Janay a ride and a place to stay on Vici

2

• • - _ _ • , _, __ • o _,. _ _ _ . . . . . ._ . _ _ _ • __ . ,
'" .~. _ • . __'. " _", ._.' _ _ ,'V' . _ _ ·
Street in Philadelphia (N.T. 4124/13, p. 68,72). After Janay accepted Appellant's offer, he gave

her heroin which she injected. Janay used approximately a bundle (14 bags) of heroin after

meeting Appellant that first day (N.T. 41241l3, p. 67). Appellant eventually approached Janay

about prostituting for him and he agreed to provide her with food and drugs in exchaJlge for her

services (N.T. 4124/l3, pp. 69-70).

Appellant took sexually provocative photograpbs of Janay and advertised her services on

the Internet After having sexual intercourse with two different men on the same day. Janay

informed Appellant that she no longer wished to conduct escort services (N.T. 4/241l3, p. 73).

Janay testified that Appellant became angry, grabbed her arms, and pushed her against the wall

of the bedroom (N.T. 4/24/13, p. 74-75). Appellant then proceeded to have forcible vaginal

intercourse with her without her consent (N.T. 4124/13, p. 75, 77).

In February of 20 12, Caitlin McQuillen was introduced to Appellant while prostituting

herself in the Kensington section of Philadelphia (N. T. 4/231l3, p. 180). At the time, Caitlin

McQuillen was sick and experiencing witbdrawal symptoms (N.T. 4/23/13, p. 181). Appellant

approached Caitlin in his car and told her that he could provide her with heroin if she would

work for him (N.T. 4123/13, p. 181). Caitlin agreed to work for Appellant in exchange for drugs

(N.T. 4/23113, p. 182). When dates would come to the door, Caitlin typically was wearing just a

bra and underwear or lingerie that waa provided by Appellant. Appellant also provided her with

condoms (N.T. 4/23/13, p. 18·3). Caitlin would give the money to Appellant and would receive

40% inberoin and crack in return (N.T. 4123/13, p. 184). Caitlin preferred cocaine over crack,

but she was not allowed to have cocaine because it would make her paranoid and she would pick
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at her face, causing scabs and' scars (N.T. 4123/13, p. 186). Appellant was upset with Caitlin

when this happened because she would not be as desirable for dates (N.T. 4/23/13, p. 186).

3

-', __ , ___ ._•• _. _ .~_ . ,~ •. ,_.A _.. _.__ • _, _,. ._._ •. ____ " " '.. _ ._
When working for Appellant, Caitlin prostituted herself out at the Ramada, Lincoln Motel and

the Roosevelt Inn (N. T. 4/23/13, p. 197).

Shortly after leaving her family home in New Hope, Pennsylvania, in February 2012,20

year old Lisa Guerrieri was introduced to Appellant through two friends from high school, Anna

Waldron and Caitlin McQuillen (N.T. 4123113, p. 105). Lisa Guerrieri had already been using

drugs for a period of time wben she met Appellant (N.T. 4123/13, p. 105). Appellant offered

Lisa ajob to work for him and told her that he worked in hotel rooms (N.T. 4123113, p. 107).

Appellanttold Lisa that she would have a place to >1ay and would have drugs (N.T. 4/23 /13, p.

107). Lisa began working for Appellant the day after sbe met him and she was given heroin that

sarne day to feed her addiction (N.T. 4123/13, p. 107). Appellant provided her with lingerie and

took photos ofber, The photos were placed on Backpage where "johns" could look up women

and call for dates (N.T. 4123113, p. 108). Appellant took the photos with his cellphone (N.T.

4123/13 p. 108). Men that saw the posts on BackPage would contact the women through a pre-

paid phone that Appellant provided (N.T. 4/23/13, p. 109).

When Lisa Guerrieri received a phone call from a "date,,,l the date would come to her

hotel room, give her money, and she would perform sexual activities, and then the date would

leave (N.T. ·4123/13, pp. 111-112). Appellant had provided a set of rules for the women to follow

when they were on a date, such as making sure the men were comfortable and that the men were

not law enforcement (N.T. 4123/13, p. 112). Appellant also told the women to only accept dates

from white men because they were more likely to pay (N.T. 4123113, p. 112). The money that

the women received from their dates was given to Appellant (N.T. 4123/13, p. 113). In exchange
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for the dates they had, Appellant provided the women with drugs (N.T. 4123/13, p. 114). It cost

. A date was the word used to describe when a "john" would call one of women from the site Backpage and .come to
the hotel.

4

_._ . _• • -. - -- - -- - -,-- . -••-- . •• - " Y -- - ' " .. .. _ .,, - ' 0--
$120 for a halfhour with the women and $160 for a full hour. All of these proceeds would go to

Appellant (N.T. 4123/13 , p. 114).

If there was a particularly slow day, where Lisa Guerrieri was not receiving any phone

calls or scheduling "dates, she was usually'sick and experiencing withdrawal symptoms (N. T.

4/23/13 , p. ll5). She would ask Appellant for more drugs, and be would respond that she was a

"fucking junkie" (N.T. 4/23/ 13, p. \[6). If Lisa was unable to earn her pay in drugs by setting up

dates, Appellant would make her have sex with him in order to receive the drugs (N.T. 4123/13,

p. 117). Lisa Guerrieri would usually use about a bundle of heroin (10 to 12 bags) a day

intravenously (N.T. 4123/13, p. 121). 10 the morning, Appellant would provide her with a ''wake

up" of three bags of heroin and a couple of crack rods (N.T. 4123/ 13 , p. 122). She would not

have been able to work ifshe was experiencing the withdrawal symptoms (N.T. 4/23/13, p. 123).

Appellant also provided Lisa Guerrieri with condoms, drug paraphernalia, such as needles, and

~ngerie (N.T. 4/23113, p. 126).

When working for Appell ant, Lisa Guerrieri prostituted herself out of several hotels,

including the Ramada, the Radisson, the Neshaminy Ion, aud the Red Roof lon, all of which are

located in Bucks County (N.T. 4/23/13, p. 120). According to Lisa, Appellant moved the women

from different hotels so that it was not obvious what they were doing in the hotel rooms (N.T.

4123/ 13, p. 121). David Ronan was Appellant's " muscle" and would stay with the women in the

rooms (N.T. 4/23113, p. 129). David Ronan was also an addict and used heroin (N.T. 4123/13 , p.

130). Lisa testified that Appellant never ingested drugs (N.T. 4/23113,.p. 130).

On March 26, 2012, Officer Gansky ufthe Bensalem Township Police Department
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received a complaint from the Neshaminy Motor Inn on the Route 1 Corridor in Bensalem

Township (N.T. 4123113 , p. 54). The complaint was in reference to prostitution activity in one of

5
the rooms at the Inn (N'.T. 4/23/ 13, p. 54). After receivinKthe complaint, Officer Gansky met

with hotel persormel and investigated room 317 at the Neshaminy Motor Inn for any suspicious

activity (N.T. 4/23 /13, p. 56). Upon arriving at room 317 with Officer Gregory Smith, Officer

Brady, and Special Agent Gallant, Officer Gansky knocked on the door of 317 and was met by a

white female, later identified as Lisa Guerrieri (N. r . 4/23/13, p. 57). Officer Gansky explained

to Lisa Guerrieri that the officers had received a complaint and asked if they could come inside

to speak to her (N'.T. 4123/ 13, p. 57). When Lisa Guerrieri opened the door to allow the Officers

inside, she ran to the bed in an effort to hide heroin needles and heroin bags (N.T. 4/23113, p.

57). Officer Gansky noticed that Lisa Guerrieri had a purse that also contained five bags of

heroin, four bags of crack, as well as used needles, baggies, Chore Boy, and tin cans (N'.T.

4/23/13, p. 57). According to Officer Gansky, a Chore Boy is used for a crack pipe. It is meta!

wiring that prevents crack from coming into the mouth so that only smoke is filtered through.

(N.T. 4123113, p. 58).

Officer Gansky and the other officers with him at the time seized the drugs from Lisa

Guerrieri and sent the drugs to be tested ill a lab. The officers informed Lisa Guerrieri that they

were going to wait a few hours until the source of the drugs, Appellant, returned to the Inn, and

Lisa agreed to contact the officers when Appellant returned (N.T. 4123/13, p. 61). Officer

Gansky also informed Lisa Guerrieri that she would be charged via summons (N'.T. 4/23/ 13, p.

66). A few hours after the initial knock and talk with Lisa Guerrieri, Lisa Guerrieri contacted

Officer Gansky and stated via. text message that Appellant had returned to the hotel room.

Officer Gansky and the other officers in the unit then responded back to the hotel and conducted
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a second knock and talk investigation (N.T. 4123113, p. 62).

Upon returning to Room 317, Officer Gansky knocked on the door, and Appellant

6

.•.. _._._._, • __ ,_ .. _. .".... _,_." ..•..•..... ,. _____ ""'''_ .. ... _ .. __ .·._w, ..•.•• .• ' _,"" '.--, _ ',"'" .,..._"
~

- .. ,'
answered, wearing only boxers (N.T. 4123113, p. 62). Lisa Guerrieri was on the bed and was

wearing a tank top and underwear. Appellant allowed the officers to search the room as well as

his vehicle, a silver Mercury with silver rims (N.T. 4123/13, p. 63). The officers found several

hundred dollars in Appellant's pants, but no drugs were found on him (N.T . 4123/ 13, p. 63). At

the conclusion of Officer Gansky's investigation at the Neshaminy Motor Inn, Officer Gansky

contacted Lisa Guerrieri's parents to let them know about Lisa's drug activity (N. T. 4/23/13, p.

64). Lisa Guerrieri's parents infonned Officer Gansky that they had been trying to find Lisa for

weeks (N.T. 4123 /13, p. 64).

On this same day, Officer Smith, who had responded to the Neshaminy Motor Inn with

Officer Gansky, had learned of another room, Room 303, which had also been suspected of

prostitution type activity (N.T. 4123 /13, p. 76) When Officer Smith knocked on the door of

Room 303 with Special Agent Gal1ant, David Ronan answered the door (N.T. 4123/13 , p. 76).

David Ronan was working for Appellant at the time. Officer Smith advised David Ronan that he

was there to investigate possible prostitution activity and asked David Ronan whether he had any

drug paraphernalia in the room (N. T. 4123/13 , p. 76). David Ronan gave the Officers consent to

search the room and pills and heroin paraphernalia, such as baggies from used heroin and

hypodermic needles, were recovered (N.T. 4123/13, p. 76).

On April 1, 2012, Officer Dennis Hart, of the Bensalem Township Police Department,

responded to the Red Roof Inn for investigation of prostitution in two rooms, rooms 164 and 174
(N.T. 4123/13 , p. 80). Officer Hart had received information that a black male rented rooms for

two days and had at least two women in each room (N.T. 4123/13, p. 80). Officer Hart was also
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given information regarding a vehicle to look out for during the investigation. After arriving at

the Red Roof Inn, Officer Hart went to the south ~ide of the botel and found a silver Mercury

7

.~. ----._ .. - , ..
Marquis with chrome wheels (N.T. 4123113, p. 81). It was the vehicle that had been reported by

the hotel staff(N.T. 4123/13, p. 81). Officer Hart ran the tag on the vehicle and it came back to

Appellant

Two days later. on April 3, 2012, Officer Smith re~ived another complaint in reference

to possible prostitution acti vity from management at the Red Roof Inn. Two separate rooms,

rooms 170 and 172, were investigated (N. T. 4123/13 , p. 86). Upon arriving at the scene, Officer

Smith observed the silver Marquis he believed belonged to Appellant pullout of the parking lot

(N.T. 4/23/13, p. 89). During Officer Smith's investigation, he learned that the rooms were

rented to Appellant and Lisa Guerrieri (N.T. 4123/13, p. 86). Officer Smith went to investigate

the rooms with management (N.T. 4123/13, p. 87). Management knocked on the doors and

advised the occupants that they needed to leave (N.T. 4/23/13, p. 87). Lisa Guerrieri opened the

door to room 170 and Officer Smith observed in plain view numerous drug paraphernalia (N. T.

4123/13, p. 87). Officer Smith asked Lisa Guerrieri if she could contact Appellant so that he

would return to the Red Roof Inn location. Lisa Guerrieri called Appellant and placed the phone

on speakerphone. Officer Smith testified that he could hear a male voice on the other end and

that the male voice was yelling at Lisa because she did not make enough money for him that day

and he was not coming back (N.T. 4123/13, p. 89).

After talking with Lisa Guenieri, Officer Smith walked over with management to room

172 where he was met by Jessica O' Donnell and David Ronan (N.T. 4123/13, p. 87). Officer

Smith noticed a hypodermic needle sticking out of Jessica O'ponnell's purse on the bed. After

observing Lisa Guerrieri, Jes!'!ca O'Donnell, and David Ronan, Officer Smith believed that they
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were under the inflnence of drugs (N.T. 4123/ 13 p. 88). They were very lethargic, moved slowly,

and it took some time for them to respond to questions (N.T. 4123/13, p. 88). Jessica O'Donnell

8

.. ~-.~~-----,- .- ... -.-.... .- - '~,'.
,.

and Lisa Guerrieri were taken into custody at this time for possession of drugs and drug

paraphernalia (N.T. 4123/13, p. 90, 135). Appellant was not arrested at this time but the

investigation continued regarding the prostitution ring (N.T. 4123113 , p. 94).

Officer Smith continued to investigate the Back Page web site and tried to locate the

women listed on the site. Specifically, Officer Smith testified that he would often visit

Kensington Avenue since it was the location where other females involved in the investigation

had met Appellant (N.T. 4124/13, p. 95). While conducting the investigation, Officer Smith was

in contact with Wendy Newton, a prostitute, who had infonnation on Appellant and his

whereabouts (N.T. 4124/13, p. 96) . When he was in contact with Wendy Newton, there was an

active warrant out for Appellant (N.T. 4124/13, p. 97). Wendy Newtown informed Officer Smith

that she had a phone number for Appellant and that she could contact him and he would meet her

since she used to work for him (N.T. 4124/13 , p. 98). Officer Smith had Wendy Newtown place a

phone call to Appellant and she gave Appellant a specific location to meet her so that Officer

Smith would be able to take him into custody. (N.T. 41241J 3, p. 98). Officer Smith contacted

the Philadelphia Police Department to assist in the arrest. (NT 4/24/13, p. 99)

Approximately fifteen minutes after Ms. Newton placed the phone call to Appellan~

Appellant arrived at the location in his Grand Marquis with cbrome rims (N.T . 4/24/13 , p. 99).

Appellant was taken into custody by several members of law enforcement soon after his anival,

and his vehicle was inventoried and broUght back to Bensalem Township Police Department

Headquarters (N.T. 4124/13, pp. 99'-102). A searcb warrant was then issued (N.T. 4124/13, p.

104). During the inventory of Appellant's vehicle, nothing was seized (N.T. 4/24/ 13, p . 137).
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Pursuant to the search warrant, a trash bag with women's clothes and lingerie were recovered

from the trunk of the vehicle, as well as a bag of condoms, several new needles and other drug

9

.. --"--'---" --- ' -~-,' -- _. _.- "-'-"-- _.-.-_ ...- ....-
paraphernalia (N.T. 4124/13, p. 138). According to Officer Smith, there were at least a hundred

new condoms (NT. 4/24/13, p. 139). Officer Smith also recovered rubber ties, vials of distilled

water, and cotton balls (N.T. 4124/13, p. 139). Cell phones and a white Deli laptop were also

recovered from the vehicle aod secured as evidence (N.T. 4124/13, p. 139). Approximately $512

was removed from Appellaot when he was arrested (N.T. 4124113 , p. 140).

Following a pre-trial hearing held on March 27, 2013, this Court granted the

Commonwealth's Motion to Consolidate Criminal Information's 4422 of20122 and 7731 of

2012' on April II, 2013. Following a jury trial held on April 22 through April 25, 2013,

Appellaot was found guilty of all charges' On July 22,2013 Appellaot was sentenced to not

less than ten years nor more than twenty years of incarceration on the charge of rape by forcible

compUlsion, and a consecutive sentence of not less than three and one half nor more than seven

years incarceration on the cbarge of promoting/encouraging prostitution on criminal information

number 7731 of2012. Appellant was sentenced to not less than ten years nor more than twenty

years incarceration on the charge of corrupt organizations, not less than three and one half nor

more than seven years consecutive incarceration on the charge of promoting

prostitution/procuring inmate for house of prostitution, not less than three and one halrnor more

2 On Oiminallnformation number 4422 of20 12. the Commonwealth charged Appellant with Corrupt
Organizations. Promoting Prostitution, Delivery ofa Controlled Substance, and related crimes. The aUegations
involved the Appellant running an ongoing prostitution and drug delivery ring.

] On Criminal Information Dumber 7731 of20 12, the Commonwealth charged AppeUant with ProTJ.loting
Prostirution, Forcible Rape, and related crimes. The allegations stem from the forcible rape of a young female that
Appellant recruited to prostitute for him. The forcible rape occurred after the victim refused to continue to prostinne
hcnelf for the Appellant
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"See Verdict Sheet Appellant was fuund guilty of Rape by Forcible Compulsion or Threat ofForcible Compulsion
(18 Pa.CoS. §3121(a)(I», Promoting Prostitution as Owner of House of Prostitution (18 Pa.C.S. §5902 (bXI», two
counts of Promoting Prostitution by Procuring an Inmate (18 Pa.C.S. §5902 (b)(2), two counts of Promoting
Prostitution - Encouraging Prostitution (l8 .Pa.C.S. §5902 (b)(J», Criminal Use ofa Communication Facility (18
Pa.C.S. §7512 (a», five cOunts of Delivery of a Controlled Substance (35 P.S. 780.113(a)(30», Conspiracy to
Promote Prostirution (18 Pa.C.S. §903 (c), and Corrupt· Organizations (18 Pa.C.S. §911 (b)(3».

10
 than seven years consecutive incarceration on the charge of promoting prostitution/encouraging

prostitution, not less than three years nor more than six years consecutive incarceration on the

charge of manufacture, delivery or possession with intent to manufacture or deliver a controlled

substance, and not less than three years nor more than six years consecutive incarceration on the

charge of manufacture. delivery or possession with intent 10 manufacrure or deliver a controlled

substance on criminal information mnnber 4422 of2012. This Court further ordered that the

sentences imposed on criminal infonnation numbers 7731 and 4422 of2012 were to run

consecutively to each other.

On July 31,2013, a Motion for Modification of Sentence was filed by Appellant. A

hearing was held on September 6, 2013 and was continued until December 17,2013' This

Court subsequently denied Appellant's Motion to Reconsider Sentence on December 24, 2013.

On January 21, 2014, Appellant med a Notice of Appeal to the Superior Court. On January 23,

2014, Appellant was directed to me a Concise Statement of Matters Complained of on Appeal.

On February 3, 2014, Appellant med a Petition for an Extension ofTime to File a Statement of

Matters Complained of on Appeal. On February 5, 2014, this Court granted Appellant's Petition

for Extension. On March 6, 2014, Appellant filed his Statement of Matters Complained on

Appeal pursuant to Pennsylvania Rule of Appellate Procedure (pa.RAP.) 1925(a).

MATTERS COMPLAINED OF ON APPEAL

On March 6, 2014 Defendant med his Statement of Matters Complained of on Appeal,

raising the following issue, verbatim:

1. Whether the sentencing court erred as a matter of law/abuse.d its discretion by
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improperly considering and failing to disregard in total a pre-sentence investigation

$We note that after this Court stated its' reasons for denying Appellant's Motion for Reconsideration of Sentence,
Appellant responded, "Yeah, fuck: you too:' (N.T. 12117/ 13, p. 22).

11

-----_. -_.. - - ' -._. __._,.
-.-" . --- .-- .... _. .~- --~ .. ---.....,-.. - -
 report produced from Bucks County Adult Probation wherein the conclusions and

averments in the report were tainted by the inclusion of an interview with the Appellant

conducted in violation of his privi~ege against self-incrimination guaranteed under the

Fifth Amendment to the United States Constitution and Article I, Section 9 of the

Pennsylvania Constitution?

2. Whether the sentencing court erred as a matter of lawlab used its discretion in declining to .

approve the Appellant's pre-sentence request for the retention of a forensic

psychologist/psychiatrist expert to assess the Appellant's current mental condition.

mental health considerations in sentencing, drug and alcohol assessment, drug and

alcohol considerations in sentencing, psychosocial history, educational history.

vocational history, the Appellant's potential for rehabilitation , and to re-but the pre-

sentence investigation and SVP report relied upon by the Court in imposing sentence.

3. Whether the trial court erred as a matter of lawlabused its discretion in granting the

Commonwealth's Motion to Consolidate Information number 4422 of 2012 and 7731 of

2012.

4. Whether the trial court erred as a matter oflaw in denying the Appellant's pre-trial

objection to venue in Criminal Information number 7731 of2012.

S. Whether the trial court erred as a matter oflaw/abused its discretion in denying the

Appellant's post-sentence motion for judgment of acquittal or new trial on the grounds

that the verdict of guilt as to the charges of rape by forcible compulsion and sexual

assault was against the weight of the evidence as the convictions improperly rested upon
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the contradictory and uncorrobomted testimony of Commonwealth witness 1.S.

12
 6. Whether the sentencing court's imposition of an aggregate sentence of not less than forty

years nor more than eighty years incarceration on Information numbers 4422 of2012 and

7731 of2012 was unreasonable and manifestly excessive in that the aggregated sentences

exceeded the aggravated range of sentencing and violated the fundamental norms of

sentencing in that the sentencing court failed to properly consider the rehabilitative needs

of the Appellant under 42 Pa. C.S.A. 9721(b).

ANALYSIS

A. Fifth Amendment Privilege

The standard of review for a claim challenging a discretionary aspect of sentencing is as

follows:

Sentencing is a matter vested in the soWld discretion of the sentencing judge,
and a sentence will not be disturbed on appeal absent a manifest abuse of
discretion. In this context, an abuse of discretion is not shown merely by an
error in judgment. Rather, the appellant must establish; by reference to the
record. that the sentencing court ignored or misapplied the law. exercised its
judgment for reasons of partialitY. prejudice. bias, or ill will, or arrived at a
manifestly unreasonable decision. Commonwealth v. Shugars. 894 A.2d 1270.
1275 (pa.Super. 2006).

When reviewing sentencing matters, great weight must be given to the sentencing court

as it is in the best position to view the defendant's character, displays of remorse. defiance or

indifference, and the overall effect and nature of the crime. Commonwealth v. Fries, 523 A.2d

1134 (pa Super. 1987), allocator denied, 531 A.2d 427 (pa. 1987). The Superior Court has

emphasized that a trial court must not delegate its sentencing decision to any person or group and
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instead. "sentencing must result both from a consideration by the trial judge of the nature and

circumstances of the crime as well as the character of the defendant. Commonwealth v. Devers,

519 Pa. 88, 92 (1988).

13

.-~- ... ---. .._._... _.,. . . . _---- _ __
.. ........ ._- ......._.. ,.-.---.-,~.-".~- - -.- .... --.,,--
 Appellant contends that the trial court erred in ordering him to submit to a pre-sentence

interview6, arguing that he should not be the source of the information that is used in sentencing.

Appellant Slates thathe should have been allowed to exercise his Fifth Amendmeot right not to

incriminate himself. We believe that Appellant misconstrues the scope of the Fifth Amendment

privilege.

The Fifth Amendment privilege against self-incrimination "protects individuals from

being coerced to give testimonial evidence which would be incriminating in the sense of

furnishing 'a link in the chain of evidence needed to prosecute. ", Commonwealth v. Moore, 400

Pa.Super 151, 153 (1990), quotinglIoffinan v. United States, 34[ U.S. 479 ([951). In addition,

in Commonwealth v. TravagJia, 502 Pa. 474, 499 (1983), the Supreme Court of Pennsylvania

found that the "privilege against self-incrimination in it pure fonn has no direct application to a

determination of the proper sentence to be imposed." The Court reasoned that the sentencing

phase of the trial has a different purpose than the guilt phase.

In Commonwealth v. Moore, the trial court directed that the Appellant cooperate with the

Probation Department so that they would be able to prepare a pre-sentence report. Specifically,

the trial court informed the Defendant:

"Mr. Moore, I don't know very much about you, and before I impose sentence in a case
like this, I want to have a prese.ntence investigation, and a presentence report. I think it's
to your benefit that the Court have all the information available to it. or that can
reasonably be made available to it .. .I hereby direct that you cooperate with the Probation
Department, that you talk to the Probation Officer for the purpose of having a
presentence report prepared." (N.T. March 20, [989 at 3-4, Commonwealth v. Moore,
400 Pa.Super 151, 153 (1990), footnote 3).

In the instant case, Appellant's Counsel, Keith McAndrews, had informed the Probation
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Department that Appellant was not going to participate in an interview for purposes of the pre-

E Pursuant to Pennsylvania Rule of Criminal Procedure 702(aXI) a pre-sentence investigation report was ordered.
The trial court has discretion to order such report so that it can "actively explore the Defendant's character and
potential response to rehabilitation programs." Commonwealth v. Kelly, 33 A.3d 638, 641 (pa Super. 2011).

14

••". - _ ... _ • . , . _ • • • • - -• • • - - . "- ' . •• - • • • • . • •- ••• , _._.. ..~ •• - . - •• • • • • , • • - ." Y'
·.
sentence investigation. However, the report indicated that Appellant was interviewed, and the

report allegedly included specific references to another pending matter in Philadelphia County.

However, the trial court indicated that Appellant voluntarily continued to speak. Moreover, the

trial court stated:

"'lfyon w ant me to disregard what he had to say, that's a separate issue. Frankly, I've
read it, and I'm not going to consider anything about pending charges. But everything
else seems to be fairly consistent with his testimony at trial. For what it's worth, I'm not
going to consider anything in the report. But you are right, he should not have been
questioned about pending charges. I'm hot sure he was questioned, as much"as he
volunteered the information." (N.T. 7122113 pp. 66-67).

Although Appellant argues that his Fifth Amendment privilege was violated, we find that

Appellant's argument is without merit. We indicated to both Appellant and Appellant's CotUlsel

that we were disregarding any statements made about pending charges. Mor.e over, for purposes

of imposing sentence, the Supreme Court ofPednsylvania has found that the privilege against

self-incrimination has no direct application when imposing sentence. Therefore, we find that

Appellant failed to demonstrate that his Fifth Amendment Privilege was violated.

B. Denial of Pre-Sentence Request

Although Appellant argues that the trial court erred as a matter of law in declining to

approve the Appellant's pre-sentence request for the retention of a psychologist to assess

Appellant's mental condition, this Court did approve this report to be made on Appellant's

behalf' However, as is reflected on the record at Appellant's Motion for Reconsideration of

Sentence hearing, Counsel for Appellant chose not to introduce this report on the record.

Specifically, when asked. by this Court whether the assessment was completed and whether the
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7 On the day ofscntencmg, Appellant requested a continuance in order to retain a psychologist to assess his mental
condition. The request for a continuance was denied. However, an evaluation was pennilted and was to be
considered shouJd Appellant seek reconsideration of sentence.

15
Court was correct in its belief that Counsel chose not to introduce any evidence of the report,

Appellant's Counsel stated:

"Your Honor, that's correct. There was approval, I had requested a mitigation expert to
rebut to some extent Dr. Shanken-Kaye's report, and the pre-sentence investigation, and I
also asked separately for funds for an SVP expert ... Nonnally I wouldn't introduce that
into the record, but under the circumstances procedurally, I felt that I had an obligation
to edvise the Court that I had contacted him and that I hed consulted with him in the
event tbat there was testimony that could be used for Appellant's sentencing on behalf of
the Appellant. .. " (N.T. 12117113, pp. 2-4).

We find that Appellant's argument lacks merit as this Court did approve a prewsentence

request on behalf of Appellant, but Appellant's Counsel chose not to introduce any of this .

evidence. s

C. Consolidation of Criminal Informations

Appellant next contends that the trial cowt erred as a matter of law in granting the

Commonwealth's Motion to Consolidate Informations nwnbcr 4422 of2012 and 7731 of2012.

On Criminal Information number 4422 of2012, the Appellant was charged and subsequently

found guilty of Corrupt Organizations, Promoting Prostitution, Delivery of a Controlled

Substance and related crimes. The allegations involved Appellant running an ongoing

prostitution and delivery ring. On Criminal Information 7731 of2012, the Commonwealth

charged the Appellant with Promoting Prostitution, Forcible Rape, and related crimes. The

allegations stemmed from the forcible rape of a young female that the Appellant recruited to

prostitute for him.
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The joinder of separate indictments or informations for trial is governed by Rule 582 of
the Pennsylvania Rules of Criminal Procedure. The rule provides:

t We also find Appellant's request for a pre-sentence psychological report inconsistent with his claim that a pre-
sentence investigation report should not have been ordered. In effect, Appellaut has chosen the circwnstances he
will participat.e in various evaluations.

16
 (A) Standards

Offenses charged in separate indiconents or Informations may be tried together if:
(a) The evidence of each of the offenses would be admissible in a separate trial
for the other and is capable of separation by the jury so that there is no danger
of confusion; or

(b) The offenses charged are based on the same act or transaction

"Whether or not separate indictments should be consolidated for trial is within the sole

discretion of the trial court and such discretion will be reversed only for a manifest abuse of

discretion or prejudice and clear injustice to the defendant." Commonwealth v. Newman, 528

Pa. 393, 398 (1991). While evidence ofpnor crimes or bad acts is generally not admissible if

offered merely to show a defendant's bad character or propensity to commit a crime, it is well

settled that where s uch evidence is proffered for some relevant p\lI}X>se other than to show

criminal propensity or bad character, such evidence is admissible, subject to the probable value

or prejudicial effect that attends a11 rulings on admissibility. Commonwealth v. Richter. 551 Pa.

507, 512 (1998). In addition, "evidence of other crimes may be introduced where such evidence

was part of the chain or sequence of events which became part of the history of the case in

question and formed part of the natural development of the facts." Commonwealth v. Spog, 562

Pa. 498, 523 (2000), citing Commonwealth v. Lark, 518 Pa 290 (1988). Tn Commonwealth v .

~ the admissibility of the prior crimes evidence was the subject of a pre-trial evidentiary

motion. The trial court found that the other crime s " were part of a chain of events which formed

the history of the case and were part of its natural development." Commonwealth v. Spotz. 562
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Pa. 498, 523 (2000).

ill the instant case, the Commonwealth argued at a pre-trial hearing before the Honorable

Diane E. Gibbons of this Court that the evidence of each of the offenses would be admissible in

17
separate tria1s for one another. Moreover, the evidence would be offered to show motive, intent,

and common scheme, plan and design. and the identity of the Appellant. The Commonwealth

also argued that.the facts supporting the Forcible Rape allegations and the fact supporting the

Corrupt Organiza·tian. Promoting Prostitution, and related charges are all part of the natural

development of the history of the case. Specifically, at the pre-trial hearing, the Commonwealth

argued :

"Your Honor, the same analysis would be, the one that we would use in determining a
prior bad act analysis. The facts that we have are part of the natural dcvelopm~nt of the
case. To preclude the rape aspect of the Philadelphia Vicci Street prostitution event
would completely change the context of what really occurred. You would essentially just
have the facts that for one 24 hour period or less than 24 hours' at the defendant's
direction, a young woman performed two sexual acts for money .. .I think even those
clements in promoting prostitution would be impacted if you took out the fact of the
sexual assault. I think there is no doubt that that would show that he encowaged her, be
induced her to perform acts of prostitution that would cause her to remain a prostitute.
But when she [Janay Sheehy] refused, hc [Appellant] then engaged in a sexual act. The
analysis I take on it is because she was indebted to him. I think it is so intertwined in the
actual act of promoting prostitution that if you took that fact out of the case, it would
change the development of the case, the history of the case, and the facts wouldn't make
sense if you took out that aspect of the case." (N.T. 3127113, pp.70-71).

This Court found that the relation of the separately charged crimes described remarkably

similar occurrences. The similarities between the victims and the manner in which they were

victimized by Appellant were sufficient to constitute not only a common plan or scheme, such

that evidence of each would be admissible in separate trials, but that the related charges were all

part of the natural development and history of the case against Appellant. Judge Gibbons found

that the prostitution ring carried out by AppelJant showed motive for the rape and in turn, the

rape showed motive for the prostitution. Therefore, the conduct of having forcible sexual
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intercourse with the victim, Janay Sheehy, in response to her refusing to continue to work for

Appellant, was evidence that strongly supports not only Appellant's intent, but the chain or

sequence of events which became part of the history of the case against Appellant.

18

-.. --~"-"-."-" .-.~.--. -- ... -.-_._.---. -. ---,---
~. ,
 D. Pre-Trial Objection to Venue

Appellant next argues that the trial court erred as a matter of law in denying the

Appellant's pre-trial objection to venue in Criminal Infonnation number 7731 of 20 12, arguing

that the alleged conduct that formed the basis ofthe charges occurred in Philadelphia, not Bucks

County. 1t would appear that Appellant believes that a criminal court lacks jurisdiction to try an

offense that did not occ\tr within that county, as the basis for his lack of jurisdiction claim.

However, the Pennsylvania Supreme Court Case ofConnnonwealth v. McPhail. 692 A.2d 139

(1997), made clear that all charges stemming from a single criminal episode should be heard in a

single trial, despite the fact that some of the charges may have arisen in more than one judicial

district. The Court determined that there is no constitutional deprivation occasioned by joining

all charges stemming from a single criminal episode for trial in one county despite the fact that

some of the charges arose in a different county. McPbail,.692 A.2d at 145. To implement the

holding in McPhall, Rule 130 was added to the Pennsylvania Rules of Criminal Procedure. The

Rule states in pertinent part:

Rule 130. Venue; Transfer of Proceedings

(A) Venue. All crimillal proceedings in swnmary and court cases shall be brought before
the issuing authority for the magisterial district in which the offense is alleged to have
occurred or before an issuing authority on temporary assignment to serve such
magisterial di~ct, subject, however, to the following exceptions:

(3) When charges arising 'from the same criminal episode occur in more than
one judicial district, the criminal proceeding on al l the charges may be
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brought before one issuing authority in a magisterial district within any of the
judicial districts in which the charges arising from the same criminal episode
occurred. Pa.R.C.P. 130.

19

~ -
,- .. - .. ..-....
-~ .. --.-- ...... - - ---.. ._- ...... . -
, ' ,-" ..... _,._,.- -_... -_.,-.._.._-., .._......
, "-" .. - .. _._ ... -. - '.'. _...... .
,-- ".- ... ,.. ~
-'.- ,- -
 In McPhail, the Court was faced with the issue as to whether certain offenses were
properly within the jurisdiction of a single court. 692 A.2d at 141. Following an analysis of

common law principles regarding jurisdiction coupled with constitutional principles and the

dictateS oftbe then-existing provisions of 18 P,,-C.S. § ItO, it was held that "there is no

constitutional deprivation occasio.ned by joining all charges stemming from a crinllnal episode

for trial in one county despite the fact that some of the charges arose in a different cOtmty." rd. at

144-45.

However, the legislature later amended 18 Pa.C.S. § 110(1)(ii), which effectually

superseded the former portion of the statute and limited the holding of McPhail. The

Pennsylvania Supreme Court interpreted "that such amendment was 'intended to preclude from

the reach of the compulsory joinder statute those current offenses that occurred wholly outside of

the geographic botmdaries of the judicial district in which the former prosecution was

brought, even though part ofa single criminal episode. '" Commonwealth v. Reed, 990 A.2d

1158,1163 (Pa. 2010). See generally Commonwealth v. Fithian, 961 A.2d 66 (pa. 2008). Despite

this, the term "McPhail letter" remains common legal vernacular regarding cases involving a

continuing criminal episode.

The Commonwealth argued that the events which took place in both Philadelphia

and Bucks Counties constituted an ongoing criminal episode. Accordingly, the central

question remains whether the charges in these cases arose from the "same criminal episode."

The teSt fashioned by the court in order to determine whether offenses charged arose
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from the same criminal episode is well-settled. The two factors to be considered are as follows:

"(I) the logieal relationship between the acts and (2) the temporal relationship between the acts."

20

..- -- " " , - '" .- -"-,... -.-~ ,- -'-"-,-,
Commonwealth v. Bracalielly. 658 A.2d 755, 761 (pa. 1995), citing Commonwealth v. Hude,

458 A.2d 177, 183 (pa. 1983). Notably,

The intetpretation of the term 'single criminal episode' mustnot be approached from
a hyper-technical and rigid perspective which defeats the purposes for which it was
created. Thus, where a munber of charges are logically and/or temporally related and
..' share common issues of law and fact, a single criminal episode exists, and separate
trials would involve.substantial duplication and waste of judicial Teso~es ...

Braca1ieUy, 658 A.2d at 761, citing Hude, 458 A.2d at 183. For the offenses to be logically

related, there must be a "substatltial duplication of factual and/or legal issues presented by the

offenses." Commonwealth v. Wittenburg, 710 A.2d 69, 74 (pa. 1998), citing Bracalielly, 658

A.2d at 761.

In the case at hand, this Court fonnd that the charges deriving from Criminal Information

7731 of 2012 and Criminal Infonnation 4421 of2012 comprised a single criminal episode as

defined by case law, thereby justifying the Commonwealth's choice if venue. Both Complaints

against Appellant involve promoting prostitution and the pattern and conduct of activity that

Appellant chose in order to run his enterprise. The testimony elicited from Janay Sheehy

indicates Appellant's pattern of prostituting vulnerable women as well as his conduct when one

refused to participate in his scheme. In addition, when Bucks County convened a grand jury

investigation and identified the scope and breadth of Appellant's enterprise, Appellant was then

charged with corrupt organization in addition to promoting prostitution and drug delivery.

Through that same investigative grand jury, Bucks County identified the forcible rape of Janay

Sheehy. Furthennore, Appellant nover once indicated how he would be prejudiced by this
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choice in venue. We find that Appellant's argument lacks merit and that the choice of venue was

proper, given the substantial duplication of facts and law involved in both cases.

E. Motion for Acquittal

21

,-,-,~,~" ... _--_ .. _.. ... -- -
, '
 A motion for judgment of acquittal challenges the sufficiency of the evidence to sustain a

conviction on a particular charge, and is granted only in cases where the Commonwealth has

failed to carry the burden regarding that charge. Commonweath v. Feathers, 442 Pa. Super. 490

(1995). It is for the fact finder to make credibility determinations, and the finder offact may

believe all, part, or none ofa witness' testimony_ Commo:nWea1th v. Adams. 882 A2d 496, 499,

(pa. Super. 2005).

Herein, this Court was free to accept 1.S.'s characterization of what transpired between

her and Appellant, particularly her representation that Appellant forced himself on her when she

refused to work for him. In Commonwealth v. Charlton, 902 A.2d 554, 562 (pa. Super. 2006).

the Superior Court held that "the lDlconoborated testimony of a sexual assault victim, if believed

by the trier offaet, is sufficient to convict a defendant." We find that 1.S's testimony was

sufficient evidence for the jury, sItting as the fact fmder and examining the evidence in its

totality, to conclude that Appellant was guilty of rape by forcible compulsion and sexual assault.

442 Pa. Super. 490

F; Imposition of Sentence

The Standard of review in sentencing matters was set forth in detail in Commonwealth v.

Walls, 926 A.2d 957 (pa. 2007):

Sentep.cing 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
dis~retion. In this context, ~ abuse of discretion is not shown merely by an
error in judgment Rather, the appellant must establish, by reference to the
record, that the senteming court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias, or ill will, or arrived at a
Circulated 01/15/2015 02:05 PM

manifestly unreasonable decision. Commonwealth v. Shugars. 894 A.2d 1270,
1275 (pa.Super. 2006).

22

--- --.--.- .---_..- "---, .. .-"-~"~. ~. . ,---.. - -".. - '"
 In order to constitute an abuse ofdiscretion, a sentence m~t either exceed statutory

limits or be manifestly excessive. Commonwealth v. Casuccio. 454 A.2d 621 (Pa. Super. 1982).

A claim of excessiveness may raise a substantial question where an appellant provides a

plausible argument that the sentence is contrary to the Sentencing Code or the fundamental

nonns underlying the sentencing process. Commonwealth v. Mouzon, 571 Pa 419, (2002).

When reviewing sentencing matters, great weight must be given to the sentencing court as it is in

the b~ position to view the defendant's character, dispJays of remorse. defiance or indifference,

and the overall effect and nature of the crime. Commonwealth.v. Fries, 523 A2d 1134 (pa.

Super. 1987), allocator denied, 531 A.2d 427 (pa. 1987).

When imposing a sentence, the trial court is required to consider the sentence ranges set

forth in the Sentencing Guidelines. Commonwealth v. Yuhasz, 923 A2d 1111, 1118 (pa 2007).

However, the trial court may deviate from the recommended guidelines; they are "merely one

factor among many that the court must consider in imposing a sentence." Yuhasz. 923 A.2d at

118. A court may depart from the guidelines "if necessary, to fashion a sentence which takes

into account the protection of the public, the rehabilitative needs of the defendant, and the

gravity of the particular offense as it relates to the impact on the life of the victim and the

community." Commonwealth v. Eby, 784 A2d 204, 206 (pa.Super. 2001) . .

A sentencing court may impose upon a defendant a sentence outside of the ranges

prescribed by the Sentencing Guidelines so long as the Court provideS a contemporaneous

written statement setting forth the reasons for the deviation. 42 Pa C.S.A. 9721 (b);
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Commonwealth v. Walls, 926 A.2d 957 (pa. 2007). The contemporaneous writing requirement

is satisfied when the sentencing court states its reasons on the record in the defendant's presence.

Commonwealth v. Ritchey, 779 A.2d 1183 (pa Super. 2001).

23

- .- • • • _. ~ ••• "-- .... .,.~.-- - - "-'."'~'--.• -? - - . - •••• - . - • • • • - •• - • • • _ • • • -_.,--_.
 In the present case, Appellant argues that the trial court failed to properly consider the

rehabilitative needs of the Appellant. For Criminal Jnfonnation 7731 of2021, the sentencing

guidelines for the Rape charge recommended a sentence of 84 to 102 months in the standard

range, 72 mitigated, and 114 in the aggravated, based upon an offensive gravity score of 12. For

Promoting Prostitution, the guidelines recommended a sentence in the staridard range of 12 to 18

months, aggravated range of21, ancl nine in the mitigated range .9 For Criminal Information

4422 of2012, the guidelines recommended a sentence of 18 months in the mitigated, 27 to 33 in

the standard, and four to two in the aggravated for the charge of COmlpt Organization. On each

of the Promoting Prostitution 9?unts, the guidelines recommended nine in the mitigated range,

12 to 18 in the standard, and 21 in the aggravated. On the Criminal Use ofa Commtmication

Facility charge, the guidelines recommended a sentence of nine months in the mitigated, 12 to 18

in the standard, and 21 in the aggravated. On the possession with intent to deliver charge, there

are two counts, which each recommended a sentence of 15 months in the mitigated, 21 to 27 in

the standard, and 33 in the aggravated. JOIn total, Appel1ant was sentenced to a period of not less

than 40 years nor more than 80 years in a State Correctional Institution.

While Appellant argues the sentence imposed by this Court was unreasonable and

manifestly excessive, it is apparent from the record that this Court took into account all necessary

factors to reach the appropriate sentence. While imposing the Appellant's sentence, this Court

9 On Criminal Information 7731 of2012, Appellant was ultimately sentenced to undergo impri.sonment for a period
of not less than ten nor more than 20 years on COlDU One. Appellant was sentenced for a period of not less than
three and a halfnor niore than seven years on the promoting and encouraging prostitUtion charge, COtmt Three. The
semence was consecutive and not concurrent to the sentence jmposed on Count One. No sentence was imposed on
Count Two or Four.
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10 On Criminal Information 4422 of2012, Appellant was ultimately sentenced for a period not less than ten nor
more than 20 'year on Count One, Corrupt Organization. The sentence was conSecutive to and not concurrenl with
the sentence imposed on Criminal Information 7731 of2012. On Counts Two,'Three and Four, the sentence on each
was not less than three and a balf. nor more than seven years. The sentences were consecutive with one another, not
concurrent, and were to be conseclltive to COtmt One. On Count 9 and Count 14, possession with intent to deliver,
Appellant was sentenced to a period of not less than three, nor more than six years, which was to run consecutive to
and not concurrent with the other senterice imposed.

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gave a lengthy explanation as to why this particular sentence was being imposed on the record.

The stated reasons were given as follows:

"Mr. Smith, you should understand that there are a lot of things I need to consider when
imposing sentence. First of all the nature and the circumstances of the offense ... this is
not just a rape case, Tbis is a Corrupt Organization case which is in some ways a
prostitution ring or a house of prostitution. It also involves use of drugs. In fact, drugs
was the tool for your trade in which you accomplished much of what you did. And it's a
forcible rape. A rape upon a woman who you took advantage of. As I recall from the
testi~ony. she didn't want to participate in prostitution and you told her that she owed
you, because you had 'given her some drugs ... l have to take into consideration the history
and the nature or character of the defendant. You have a number of prior convictions.
You have what I consider to be a complete and total lack of remorse ... You denied
everything and you tried to present yourself as the victim and that you were
misinterpreted, that you tried to help these young women. There's nothing further from
the truth. You exploited them and you did it for profit ... What's really significant for me
is the lack of ability to conform your conduct, even while in institution ... I also have to
take into consideration the impact this had upon the particular victims in the case ... So
you see Mr. Smith, your conduct affects not just the victim herself, but the victim's
family. All of these families were affected by what you did ... And then of course I have
to consider the sentencing guidelines, which I've done. And I have to considcr your need
for rehabilitation, which I think was put in perspective by Dr. Shanken-Kaye, and he
writes, without intensive lifetime treatment and close supervision, it's likely you will
engage in future criminal behavior, including sexual offenses. You have a wanton
disregard for the rules of society and the rights of others ... So you've demonstrated
through your conduct that this is a serious offense and you have no regard for anyone
else, and the likelihood of you re-offending is in my judgment virtual certainty without
proper treatment." (N.T. 7122113, pp. 87-93).

Given the na~e of the offenses to which the Appellant was found guilty, the Appellant's

criminal history, the Appellant'S continuous criminal conduct, even when incarcerated, and his

lack of remorse, Appellant's sentence was necessary, appropriate, and within this Court's

discretion.
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25
CONCLUSION

For the foregoing reasons, we find that the issues Appellant has raised in this appeal are

without merit.

BY THE COURT:

Date:lJ4~ I~/ JDI'j

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