Com. v. Diaz, S.

J-S51027-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SANTOS DIAZ :
:
Appellant : No. 559 MDA 2018

Appeal from the Judgment of Sentence December 18, 2017
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0000333-2016

BEFORE: PANELLA, P.J., GANTMAN, P.J.E., and MUSMANNO, J.

MEMORANDUM BY GANTMAN, P.J.E.: FILED OCTOBER 07, 2019

Appellant, Santos Diaz, appeals from the judgment of sentence entered

in the York County Court of Common Pleas, following his jury trial convictions

for rape of a mentally disabled person, involuntary deviate sexual intercourse

(“IDSI”) of a mentally disabled person, and sexual assault.1 We affirm.

The trial court opinion accurately set forth the relevant facts and

procedural history of this case as follows:

[Appellant’s] jury trial took place between September 5,
2017 and September 8, 2017. The Commonwealth first
presented the testimony of Melissa Leeper, who works for
the Shadowfax Corporation, which provides services for
mentally disabled persons. She testified as to the
intellectual and developmental disabilities (IDD) of [Victim].
She described the care that [Victim] needed and how she
would be unable to live on her own.

____________________________________________

1 18 Pa.C.S.A. §§ 3121(a)(5); 3123(a)(5); 3124.1, respectively.
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The Commonwealth then presented the testimony of
[Victim]. She testified that [Appellant], who lived with her
and her family…in York, Pennsylvania, raped her numerous
times, penetrating her both vaginally and anally. She also
testified that he told her not to tell anyone. The
Commonwealth then called [V]ictim’s sister, [C.C.] She
testified that she took [V]ictim to the hospital on April 5 th,
2015 to get a rape kit performed, because [V]ictim said
[Appellant] was having sex with her. She testified that
[V]ictim was very nervous when she told [C.C.] about what
was occurring.

The Commonwealth presented testimony from K.D., a minor
who was [V]ictim’s cousin. She testified that she witnessed
[Appellant] and [V]ictim having sex. Both of their pants
were halfway down, and [Appellant’s] penis was touching
[V]ictim’s butt. K.D. told [C.C.] what she saw. The
Commonwealth next called Heidi Wilkerson, a Sexual
Assault Forensic Examination (SAFE) nurse, who performed
a SAFE exam on [V]ictim. [V]ictim told [Nurse] Wilkerson
the last time she had sex with [Appellant] was 3 weeks prior
to the SAFE exam. [Nurse] Wilkerson did not collect any
physical evidence [or] note any genital injuries to [V]ictim,
due to the extended period of time between her last sexual
contact with [Appellant] and the SAFE exam.

The Commonwealth’s next two witnesses, Terrae Fried (a
certified school psychologist) and Ashley Rhem (a social
worker with the Children’s Advocacy Center), both testified
as to the mental condition and intellectual disabilities of
[V]ictim, and the interview processes taken to discuss the
events with [V]ictim. The Commonwealth then presented
the testimony of the affiant, Detective Kyle Hower.
Detective Hower made contact with [V]ictim and various
members of her family, and attempted to make contact with
[Appellant] but was unsuccessful until he was taken into
custody. After Detective Hower’s testimony, the
Commonwealth rested.

The [d]efense then put on its case, first presenting the
testimony of [Appellant]. [Appellant] denied that he ever
had any sexual contact with [V]ictim, that he was ever alone
in a room with her, and that he was ever in a state of
undress with [V]ictim. [Appellant] also testified that the

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reason he was apprehended by federal marshals in New
Jersey was because he went to New Jersey to fix [his]
sister’s car. He stated that this happened in the spring of
2015. The [d]efense also presented the testimony of [C.D.],
[Appellant’s] sister and [V]ictim’s mother. [C.D.] testified
that the family dynamic in the house…was normal, that
everyone got along, and she had no knowledge of any illicit
activity between [V]ictim and [Appellant]. After she was
made aware of the allegations against [Appellant], she
made him leave the house and he moved into an apartment
she got for [Appellant]. She then testified that he left the
apartment and the area “in the summer” of 2015. The
[d]efense then rested, and the Commonwealth recalled
Detective Hower on rebuttal, who testified that [Appellant]
was apprehended in New Jersey and taken into custody in
October of 2015, which was not the spring.

The jury retired to deliberate, and returned a verdict of
guilty on all 3 counts [on September 8, 2017]. [Appellant]
was sentenced [on December 18, 2017,] to [an aggregate]
18 to 36 years’ incarceration. [Appellant timely filed post-
sentence motions on December 22, 2017 and amended
post-sentence motions on February 27, 2018, which the
court denied following a hearing on February 28, 2018].
[Appellant] timely filed [a] notice of appeal [on March 23,
2018], and then submitted his [court-ordered concise
statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b), on April 30, 2018].

(Trial Court Opinion, filed April 1, 2019, at 2-4) (internal citations omitted).

Appellant raises three issues for our review:

DID THE TRIAL COURT ABUSE ITS DISCRETION IN
DENYING APPELLANT’S MOTION FOR JUDGMENT OF
ACQUITTAL CHALLENGING THE WEIGHT OF THE EVIDENCE
AND GUILTY VERDICT ON THE CHARGES OF RAPE OF A
MENTALLY DISABLED PERSON, INVOLUNTARY DEVIATE
SEXUAL INTERCOURSE OF A MENTALLY DISABLED PERSON
AND SEXUAL ASSAULT?

DID THE TRIAL COURT ABUSE ITS DISCRETION IN
DENYING APPELLANT’S MOTION FOR MISTRIAL WHEN A
COMMONWELATH WITNESS STATED DURING TESTIMONY

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THAT THE ACTS FOR WHICH APPELLANT WAS CONVICTED
“STARTED ABOUT A MONTH AFTER HE GOT OUT OF JAIL?”

DID THE TRIAL COURT ABUSE ITS DISCRETION IN
SENTENCING APPELLANT TO NINE (9) TO EIGHTEEN (18)
YEARS FOR RAPE OF A MENTALLY DISABLED PERSON AND
A CONSECUTIVE NINE (9) TO EIGHTEEN (18) YEARS FOR
INVOLUNTARY DEVIATE SEXUAL INTERCOURSE WITH A
MENTALLY DISABLED PERSON WHERE THE SENTENCES
IMPOSED EXCEEDED THE STANDARD SENTENCING RANGE
OF 60 TO 78 MONTHS AND 90 MONTHS FOR THE
AGGRAVATED RANGE?

(Appellant’s Brief at 5).

In his first issue, Appellant argues Victim’s testimony was “suspect” to

the point of undermining the truth-determining process. Specifically,

Appellant asserts Victim testified the assaults occurred on most weekends

during the summer, which contradicted the Commonwealth’s allegations that

the assaults took place between November 1, 2014 and April 8, 2015.

Appellant highlights Victim’s testimony that she did not like Appellant and had

a “bad feeling” about him. Appellant claims the only evidence to corroborate

Victim’s allegations was from C.C. (Victim’s sister) and K.D. (Victim’s cousin).

Appellant emphasizes that C.C. had to correct Victim about dates and times

when Victim disclosed the sexual abuse to hospital staff. Appellant insists

Victim’s bias against him and C.C.’s “prompting” of Victim during the hospital

interview are “troubling.” Appellant also contends Nurse Wilkerson did not

collect physical evidence from Victim or note any genital injuries. Appellant

submits law enforcement similarly made no effort to collect bed linens,

clothing, or other items for forensic analysis. Appellant avers C.D. (Victim’s

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mother and Appellant’s sister) testified the interactions between Appellant and

Victim were fine, and she did not observe any tension between the two of

them. Appellant reiterates his trial testimony that he did not ever have sexual

contact with Victim, and was not ever alone with Victim or in a state of undress

with her. Appellant maintains the trial court failed to address Appellant’s

weight issue in its Rule 1925(a) opinion because the court improperly treated

the claim as a challenge to the sufficiency of the evidence. Appellant

concludes the verdict was so contrary to the evidence that it should have

shocked the trial court’s sense of justice, and this Court should overturn his

convictions.2 We disagree.

Preliminarily, the distinction between a claim challenging the sufficiency

of the evidence and a claim challenging the weight of the evidence is critical.

Commonwealth v. Widmer, 560 Pa. 308, 318, 744 A.2d 745, 751 (2000).

A claim challenging the sufficiency of the evidence, if
granted, would preclude retrial under the double jeopardy
provisions of the Fifth Amendment to the United States
Constitution, and Article I, Section 10 of the Pennsylvania
Constitution, whereas a claim challenging the weight of the
evidence if granted would permit a second trial.

A claim challenging the sufficiency of the evidence is a
question of law. Evidence will be deemed sufficient to
support the verdict when it establishes each material
element of the crime charged and the commission thereof
by the accused, beyond a reasonable doubt. Where the
____________________________________________

2 The Commonwealth claims Appellant waived his weight issue by failing to
request the transcript from the hearing on Appellant’s post-sentence motions.
We have obtained and reviewed the relevant transcript, which is now part of
the certified record, so we decline to find waiver on this ground.

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evidence offered to support the verdict is in contradiction to
the physical facts, in contravention to human experience
and the laws of nature, then the evidence is insufficient as
a matter of law. When reviewing a sufficiency claim the
court is required to view the evidence in the light most
favorable to the verdict winner giving the prosecution the
benefit of all reasonable inferences to be drawn from the
evidence.

A motion for new trial on the grounds that the verdict is
contrary to the weight of the evidence, concedes that there
is sufficient evidence to sustain the verdict. Thus, the trial
court is under no obligation to view the evidence in the light
most favorable to the verdict winner. An allegation that the
verdict is against the weight of the evidence is addressed to
the discretion of the trial court. A new trial should not be
granted because of a mere conflict in the testimony or
because the judge on the same facts would have arrived at
a different conclusion. A trial judge must do more than
reassess the credibility of the witnesses and allege that he
would not have assented to the verdict if he were a juror.
Trial judges, in reviewing a claim that the verdict is against
the weight of the evidence do not sit as the thirteenth juror.
Rather, the role of the trial judge is to determine that
notwithstanding all the facts, certain facts are so clearly of
greater weight that to ignore them or to give them equal
weight with all the facts is to deny justice.

Id. at 319-20, 744 A.2d at 751-52 (internal citations and quotation marks

omitted). See also Commonwealth v. Wilson, 825 A.2d 710 (Pa.Super.

2003) (explaining sufficiency of evidence review does not include assessment

of credibility, which is more properly characterized as challenge to weight of

evidence).

Our standard of review for a challenge to the weight of the evidence is

as follows:

The finder of fact is the exclusive judge of the weight of the
evidence as the fact finder is free to believe all, part, or none

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of the evidence presented and determines the credibility of
the witnesses. As an appellate court, we cannot substitute
our judgment for that of the finder of fact. Therefore, we
will reverse a jury’s verdict and grant a new trial only where
the verdict is so contrary to the evidence as to shock one’s
sense of justice. Our appellate courts have repeatedly
emphasized that one of the least assailable reasons for
granting or denying a new trial is the [trial] court’s
conviction that the verdict was or was not against the weight
of the evidence.

Commonwealth v. Rabold, 920 A.2d 857, 860 (Pa.Super. 2007), aff’d, 597

Pa. 344, 951 A.2d 329 (2008) (internal citations and quotation marks

omitted).

Moreover, where the trial court has ruled on the weight
claim below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against the
weight of the evidence. Rather, appellate review is limited
to whether the trial court palpably abused its discretion in
ruling on the weight claim.

Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408

(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004).

Instantly, in his post-sentence motion, Appellant titled the heading for

his weight claim as follows: “MOTION FOR ARREST OF JUDGMENT – WEIGHT

OF THE EVIDENCE[.]” (Post-Sentence Motion, filed 12/22/17, at 2). In

support of this claim, Appellant requested “an arrest of judgment because the

jury’s verdict was against the weight of the evidence” and stated “that very

little, if any, evidence was presented that supports the jury verdict.” (Id.)

Appellant subsequently filed an amended post-sentence motion requesting a

“Motion for Judgment of Acquittal” and claiming “the verdict that followed the

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presentation of all the evidence should have so shocked this Honorable Court’s

sense of justice that the only fair conclusion would be for this Honorable Court

to arrest judgment and grant [Appellant] a new trial.” (Amended Post-

Sentence Motion, filed 2/27/18, at 1-2). Appellant alleged, inter alia, “the

credibility of victim was suspect to the point of undermining the truth

determining process.” (Id. at 2).

Notwithstanding Appellant’s attempt to raise a challenge to the weight

of the evidence in his post-sentence motions, Appellant blurred the concepts

of a weight claim and a challenge to the sufficiency of the evidence by

repeatedly requesting judgment of acquittal, which is the relief for a successful

sufficiency claim. See Widmer, supra. Appellant made the same error in

his Rule 1925(b) statement and in his argument on appeal. Based on

Appellant’s request for “Motion for Judgment of Acquittal,” the trial court said

in its Rule 1925(a) opinion that it interpreted Appellant’s claim of error on

appeal as a challenge to the sufficiency of the evidence.

Nevertheless, in its analysis of the evidence, the trial court explained:

[Appellant] also attacks the credibility of [V]ictim, in stating
that she was biased against [Appellant], as she stated that
she did not like him. Twice during her testimony, once
during direct examination and once during cross-
examination, [V]ictim stated she hated [Appellant], “more
than life itself.” It is the jury’s function to determine the
credibility of witnesses as well as to consider any bias. The
jury heard both of these statements and still found
[Appellant] guilty. Outside of asking [V]ictim if she did not
like [Appellant], [Appellant] failed to further cross-examine
[V]ictim as to this statement to show whether she was
biased against [Appellant] generally, and not simply

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expressing anger towards him due to the fact that he
committed heinous acts against her. [Appellant] argues
that the entirety of the Commonwealth’s case rested on
[V]ictim’s credibility. However, the Commonwealth
presented the eyewitness testimony of the minor K.D., who
credibly testified that she witnessed [Appellant] having
sexual intercourse with [V]ictim. This credible corroboration
of another independent party as to [V]ictim’s allegations
provided sufficient factual basis for the jury to find in the
Commonwealth’s favor on all counts.

(Trial Court Opinion at 6) (internal citations omitted). Notwithstanding the

court’s purported “sufficiency” review, the trial court’s analysis makes clear it

evaluated Appellant’s attack on the credibility of the witnesses, consistent with

a challenge to the weight of the evidence. See Wilson, supra.

Further, the court expressly and directly addressed Appellant’s weight

claim during the hearing on Appellant’s post-sentence motions, as follows:

The weight of the evidence. The verdict was not against the
weight of the evidence. The jury decides credibility in this
case. The [c]ourt doesn’t. But it is important for the [c]ourt
to observe that [V]ictim’s credibility on the witness stand
appeared to be very strong.

She was not—when it came to testifying to any of the
elements that establish the offense. She did not waiver.
She was not uncertain.

The defense points out some excerpts from the transcript.
I remember those well and what I remember from these
excerpts was a couple things. First of all, I do not recall at
this time what the [witnesses] testified to…[regarding] her
level of sophistication, but I remember it was below 10 years
of age. And the fact that [Victim] had a belief, and even
some adults have this belief, that you can somehow will
yourself from the inside [not to become pregnant] if you are
sexually assaulted, a popular urban legend, which is totally
untrue biologically.

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But the fact that she believed that and gave herself credit
for not becoming pregnant, that’s not significant. There
[are] a lot of people who are unsophisticated in matters of
biology and [Victim] is apparently one of those. Doesn’t go
to her credibility in the case. It goes to a lack of level of
sophistication in sexual matters.

The other three matters all really go to a victim who was
traumatized and that was clear from her testimony on the
stand. For a person who in terms of maturity and
development was so young, she had a sense of rage when
she was on the stand that this had occurred to her. And the
fact that somebody who had been victimized and
traumatized in that matter was fixated on what had occurred
to her instead of collateral questions about did [Appellant]
cook meals for you. That’s frankly not surprising to the
[c]ourt. And it doesn’t concern the [c]ourt. And frankly, if
it was even a person who did not have the IDD issues that
[Victim] did, if I had an adult witness testifying in that
matter, you know you’d want to re-direct the witness to
respond to the question, but it doesn’t mean that they are
being incredible or what they are saying is not true. It
means, they are here in court finally and they are fixated on
the trauma that they suffered at the hands of another
individual.

[Victim] does speak differently than other individuals
because of her impairment. She does tend to sometimes
come at issues indirectly and that was clear from her
testimony. It may take her a little while to work her way
around the mountain to come back to the central point and
we saw that in her testimony.

With some individuals that could be viewed as potentially
trying to avoid a question. This [c]ourt viewing her
testimony believes that is not the case with her. It is just
how her brain works that she has to process certain things
to come back to that point and I believe we had some
testimony in that regard.

So, none of this concerns the [c]ourt in terms of the weight
of the evidence and I don’t find that it makes her testimony
against the weight of the evidence.

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One thing that was not brought up, I don’t think it was
brought up much during closing either that really needs to
be remembered on appeal by both parties is there is an eye
witness. This is not [Victim] versus [Appellant]. There was
an eye witness to the sexual contact[;] her eye witness,
again, who was one of the most devastated and credible
witnesses this judge has ever seen.

Again, I was [not] sitting [as] the fact finder, but that young
person who testified was mortified and could barely get the
words out of [her] mouth in the courtroom because [she
was] so shocked by what [she] had seen.

So, this isn’t a matter of, oh, this is some impaired person
or maybe [she] just [had] some fantasy or [she] wanted to
get back at [Appellant]. There was an eye witness, who
clearly did not want to be in this courtroom saying the
words, because [she was] so embarrassed by the fact that
[she] had to relate this in a public courtroom.

So, there is corroboration for what [Victim] was saying. And
the defense case was not that this was consensual. The
defense case was that this never happened and [Appellant]
got up here and testified this never happened.

The jury heard from an eye witness, who saw it happen and
they apparently deemed that eye witness credible and they
apparently deemed [Victim] credible. So, there is more
than enough evidence—weight of the evidence to support
the verdict. The [c]ourt is certainly not going to replace its
judgment for that of the jury.

(N.T. Post-Sentence Motion Hearing, 2/28/18, at 26-30). We see no reason

to disrupt the court’s analysis. See Champney, supra; Rabold, supra.

Therefore, Appellant’s first issue merits no relief.

In his second issue, Appellant argues SAFE Nurse Wilkerson improperly

referenced Appellant’s prior incarceration during her testimony. Specifically,

Appellant highlights Nurse Wilkerson’s testimony that Victim stated

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Appellant’s alleged sexual conduct started about a month after Appellant got

out of jail. Appellant asserts defense counsel objected and moved for a

mistrial based on the reference to Appellant’s prior incarceration. Appellant

insists Nurse Wilkerson’s comment was unduly prejudicial and could not be

remedied by the court’s curative instruction. Appellant concludes the court

erred by denying his motion for a mistrial, and this Court must remand for a

new trial. We disagree.

Our standard of review from the court’s denial of a motion for a mistrial

is as follows:

The trial court is in the best position to assess the effect of
an allegedly prejudicial statement on the jury, and as such,
the grant or denial of a mistrial will not be overturned absent
an abuse of discretion. A mistrial may be granted only
where the incident upon which the motion is based is of such
a nature that its unavoidable effect is to deprive the
defendant of a fair trial by preventing the jury from weighing
and rendering a true verdict. Likewise, a mistrial is not
necessary where cautionary instructions are adequate to
overcome any possible prejudice.

Commonwealth v. Rega, 593 Pa. 659, 692, 933 A.2d 997, 1016 (2007),

cert. denied, 552 U.S. 1316, 128 S.Ct. 1879, 170 L.Ed.2d 755 (2008).

This Court has stated:

A mistrial is warranted when a juror could reasonably infer
from the facts presented that the accused had engaged in
prior criminal activity. When the statement at issue relates
to a reference to past criminal behavior, the nature of the
reference and whether the remark was intentionally elicited
by the Commonwealth are considerations relevant to the
determination of whether a mistrial is required.

A singular, passing reference to prior criminal activity is

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usually not sufficient to show that the trial court abused its
discretion in denying the defendant’s motion for a mistrial.
When the trial court provides cautionary instructions to the
jury in the event the defense raises a motion for mistrial,
the law presumes that the jury will follow the instructions of
the court.

Commonwealth v. Parker, 957 A.2d 311, 319 (Pa.Super. 2008), appeal

denied, 600 Pa. 755, 966 A.2d 571 (2009) (internal citations and quotation

marks omitted).

Instantly, the trial court addressed this issue as follows:

[Appellant claims] that the [c]ourt abused its discretion in
failing to declare a mistrial. [Appellant] points to the
statement made by Commonwealth witness Heidi
Wilkerson, a SAFE nurse. While testifying, [Nurse]
Wilkerson stated that [V]ictim told her that her interactions
with [Appellant] began “about a month or so after he got
out of jail.” At that point [Appellant] moved for a mistrial,
which the [c]ourt denied, and instead gave a curative
instruction to the jury for them to disregard the testimony
regarding jail.

There is not a per se rule requiring a new trial for every
reference to past criminal conduct, and the decision whether
to declare a mistrial when faced with these situations is
within the sound discretion of the trial judge. Mere “passing
references” to prior criminal activity do not warrant reversal
unless the record illustrates that prejudice resulted from the
reference. The context of this statement shows it was a
mere passing reference made by a medical professional
repeating [V]ictim’s statement made during a medical
exam. The statement did not highlight [Appellant’s] prior
criminal conduct, it was not within the testimony of a law
enforcement officer, [or] a fellow inmate at a correctional
institution, but merely a small part of a larger discussion
between [V]ictim and a SAFE nurse. The statement was
immediately addressed by the [c]ourt through a curative
instruction instructing the jury to disregard it completely,
and even highlighting that it is not a proven fact. The jury
provided no indication that they would refuse to follow the

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judge’s instruction, which they had sworn to do. There is
no evidence of prejudice in the case from this passing
reference. This instruction was sufficient to address the
matter and the denial of a mistrial was appropriate.

(Trial Court Opinion at 6-7) (internal citations omitted). The record supports

the court’s analysis. See Rega, supra; Parker, supra. Thus, Appellant’s

second issue merits no relief.

In his third issue, Appellant argues the court imposed consecutive,

aggravated range sentences for his rape and IDSI convictions. Appellant

asserts the cumulative nature of his sentence demonstrates the court’s bias

or ill will against Appellant. Appellant concedes the court stated at sentencing

that Appellant has no rehabilitative potential, no self-realization, and is

dangerous, violent, and manipulative. Appellant insists the sentence imposed

was manifestly unreasonable. Appellant suggests the court improperly relied

on Appellant’s recent release from jail at the time of the current offenses as a

basis for sentencing within the aggravated range. As presented, Appellant’s

claims implicate the discretionary aspects of sentencing. See

Commonwealth v. Corley, 31 A.3d 293 (Pa.Super. 2011) (explaining

allegation that court’s sentence was motivated by bias challenges

discretionary aspects of sentencing); Commonwealth v. Hanson, 856 A.2d

1254 (Pa.Super. 2004) (stating allegation that court imposed excessive,

aggravated range sentences implicates discretionary aspects of sentence).

A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right. Commonwealth v. Hunter,

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768 A.2d 1136 (Pa.Super. 2001), appeal denied, 568 Pa. 695, 796 A.2d 979

(2001). Prior to reaching the merits of a discretionary sentencing issue:

We 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. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

What constitutes a substantial question must be evaluated on a case-

by-case basis. Commonwealth v. Paul, 925 A.2d 825 (Pa.Super. 2007). A

substantial question exists “only when the appellant advances a colorable

argument that the sentencing judge’s actions were either: (1) inconsistent

with a specific provision of the Sentencing Code; or (2) contrary to the

fundamental norms which underlie the sentencing process.” Commonwealth

v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000) (internal citation omitted). In

other words, an appellant’s Rule 2119(f) statement must sufficiently articulate

the manner in which the sentence violates either a specific provision of the

sentencing scheme set forth in the Sentencing Code or a particular

fundamental norm underlying the sentencing process. Commonwealth v.

Mouzon, 571 Pa. 419, 812 A.2d 617 (2002).

On appeal, this Court will not disturb the judgment of the sentencing

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court absent an abuse of discretion. Commonwealth v. Fullin, 892 A.2d

843 (Pa.Super. 2006).

[A]n abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have abused its
discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will. In more expansive
terms, …: An abuse of discretion may not be found merely
because an appellate court might have reached a different
conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or
such lack of support so as to be clearly erroneous.

The rationale behind such broad discretion and the
concomitantly deferential standard of appellate review is
that the sentencing court is in the best position to determine
the proper penalty for a particular offense based upon an
evaluation of the individual circumstances before it. Simply
stated, the sentencing court sentences flesh-and-blood
defendants and the nuances of sentencing decisions are
difficult to gauge from the cold transcript used upon
appellate review. Moreover, the sentencing court enjoys an
institutional advantage to appellate review, bringing to its
decisions an expertise, experience, and judgment that
should not be lightly disturbed. Even with the advent of the
sentencing guidelines, the power of sentencing is a function
to be performed by the sentencing court. Thus, rather than
cabin the exercise of a sentencing court’s discretion, the
guidelines merely inform the sentencing decision.

* * *

[W]e reaffirm that the guidelines have no binding effect,
create no presumption in sentencing, and do not
predominate over other sentencing factors—they are
advisory guideposts that are valuable, may provide an
essential starting point, and that must be respected and
considered; they recommend, however, rather than require
a particular sentence. …

Commonwealth v. Walls, 592 Pa. 557, 564-70, 926 A.2d 957, 961-65

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(2007) (internal quotation marks, footnotes, and citations omitted).

Furthermore, in exercising its discretion, the sentencing
court may deviate from the guidelines, if necessary, to
fashion a sentence that 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, so long
as the court also states of record the factual basis and
specific reasons which compelled the deviation from the
guidelines. This Court must remand for resentencing with
instructions if we find that the sentencing court sentenced
outside the guidelines and the sentence was unreasonable.

Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.Super. 2001), appeal

denied, 568 Pa. 695, 796 A.2d 979 (2002) (internal citations omitted). “A

sentencing court may consider any legal factor in determining that a sentence

in the aggravated range should be imposed.” Commonwealth v. Bowen,

975 A.2d 1120, 1122 (Pa.Super. 2009). “In addition, the sentencing judge’s

statement of reasons on the record must reflect this consideration, and the

sentencing judge’s decision regarding the aggravation of a sentence will not

be disturbed absent a manifest abuse of discretion.” Id.

Pursuant to Section 9721(b), “the court shall follow the general principle

that the sentence imposed should call for confinement that is consistent with

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.A. § 9721(b). “[T]he court shall make as

part of the record, and disclose in open court at the time of sentencing, a

statement of the reason or reasons for the sentence imposed.” Id. See also

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Commonwealth v. Fowler, 893 A.2d 758 (Pa.Super. 2006) (stating where

court had benefit of pre-sentence investigation (“PSI”) report, we can

presume it was aware of relevant information regarding defendant’s character

and weighed those considerations along with mitigating statutory factors).

Instantly, Appellant timely filed a notice of appeal, and preserved his

sentencing claim in a timely filed post-sentence motion and in a Rule 2119(f)

statement. See Evans, supra. Additionally, Appellant’s claim of bias raises

a substantial question. See Corley, supra (stating allegation of bias in

sentencing implicates fundamental norms underlying sentencing and raises

substantial question for appellate review). Likewise, Appellant’s claim that

the court relied on an improper factor (his recent release from jail at the time

of the current offenses) to impose an aggravated range sentence presents a

substantial question. See Commonwealth v. Stewart, 867 A.2d 589

(Pa.Super. 2005) (stating assertion that court considered improper factors in

placing sentence in aggravated range presents substantial question on

appeal).

The court explained its sentencing rationale on the record as follows:

The [c]ourt has reviewed the record and all evidence and
testimony in reaching a decision on the sentence in this
matter considered in the PSI, statements presented today,
as well as the arguments of counsel.

A pre-sentence investigation report was ordered. The
[c]ourt has considered those contents, which indicate
[Appellant’s] prior record score is a 2. Charges before the
[c]ourt for sentencing have the following offense gravity
scores: Count 1, [a] F1, rape of a mentally disabled victim

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is a 12; Count 2, F1, involuntary deviate sexual intercourse,
mentally disabled victim, is a 12; Count 3 is [a] F2, sexual
assault, which is an 11.

Standard range sentence for Count 1 is 60 to 78 months,
aggravated range sentence is 90.

Count 2, standard range is 60 to 78 months, aggravated
range sentence is 90. Count 3, standard range sentence is
48 to 60 months, but as we’ve addressed previously, it
merges.

There’s a number of factors the [c]ourt needs to consider in
this matter. The very nature of the acts of which [Appellant]
were found [guilty] are very disturbing and those are
contained within the offense gravity score of the matter. So
the fact that a mentally disabled person was the victim of a
case is not an aggravating factor it’s already captured within
the offense gravity score.

We had statements from both counsel referencing the way
the matter was charged, and that is correct, it was charged
as two separate counts, with the two separate counts
occurring in a period between Saturday, the 1st of November
2014, and Wednesday, the 8th of April 2015.

At trial, [V]ictim…testified that she had told the SAFE nurse
that these assaults on her happened, quote, a lot, unquote,
and she testified that it happened on weekends and that it
happened more than once, but…the [Commonwealth]
charged as it is.

Now we have two separate acts charged here, on Count 1
and Count 2, and the [c]ourt does take into consideration
that [Appellant] had the opportunity to consider and reflect
on the wrongfulness of his conduct regarding in between
each of these separate acts. They are viewed as separate
acts under the law, to consider that they were directed at
his own niece, and yet he chose to engage in both of these
acts of conduct with this young lady.

In this case, [Appellant] clearly engaged in criminal
behavior, behavior that shocks the conscience, both
because of it being directed at the nature of the victim,

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[and] because it was directed at somebody within his own
family. He did seek to isolate his victim and he made a
mistake, he made an error in picking his victim.

He had only been out of jail about a month, I believe, when
he did this, a matter of weeks. And he assumed that
[V]ictim would be vulnerable, silent, intimidated, weak, and
if she spoke, that she wouldn’t be believed. And this is
because she has some IDD issues. But [Victim], although
not fully understanding why these acts were happening to
her, has a fully formed and strongly developed sense of the
difference between right and wrong and a strongly
developed sense of the differences between truth and lies.

She was not weak in this case, but she was strong. And
when she came to understand that she had been
mistreated, she was not intimidated, but she was
courageous, and she came to court and she spoke her mind
in one of the most difficult situations that a young lady could
possibly find [herself] in.

She presented herself credibly to the jury and to this
[c]ourt, and she was convincing in part because she has a
spark and an inner strength to her that [Appellant] did not
count on.

I remember during her testimony several times during the
trial that she mentioned she’s got a phrase that she uses,
an expression, where she would say that somebody believed
her 33 percent or she told somebody something 33 percent.
Now that doesn’t mean literally what she said, it became
very clear when [Victim] uses that phrase, somebody
believed her 33 percent, what she really means, is
somebody believed her totally. She’s not a math major. We
have the records from her counselors who testified as to her
academic level. She wasn’t believed 33 percent, not by
anybody she told, she was believed to be completely truthful
and credible.

In its sentencing rule, this [c]ourt accepts the verdict of the
[c]ourt, and for purposes of sentencing, finds [Victim’s]
testimony to have been fully credible.

In addressing [Appellant’s] particular needs from this

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sentence, we’re very concerned that he had only recently
left jail and he immediately found somebody to victimize.
He found somebody in his own family to victimize. He
isolated [her] and assaulted [her]. As we have heard from
[Victim’s] testimony, he did this repeatedly.

As the [c]ourt noted, he’s got a 2013 conviction for
aggravated assault. The [c]ourt finds he’s got no
rehabilitative potential, he can’t seem to help himself in
terms of lying. He lied on the stand. He lied here today in
court again. He’s not being sentenced for those lies, per se,
but it goes to his rehabilitative potential.

He has no self-realization, so no self-reflection on the
wrongfulness of his acts. The Commonwealth pointed it out
during…closing argument. Again, he’s not being sentenced
for this, but in the pre-sentence investigation report, he tells
the probation officer, there’s no evidence to convict me at
trial.

Well, I could see him saying that, you know, even in an
uneducated non-lawyerly sense, non-legal sense, if it was
his word against [Victim’s], but there’s the testimony of the
niece who came in and testified in an absolute shocked and
overwhelmed sense, practically, as to what she saw. The
young lady was…credible on the witness stand and mortified
she had to come in here and talk about the sexual display
that she had seen [Appellant] inflicting on [V]ictim.

[Appellant] just pretends like that doesn’t exist. He may
not agree with it, that’s one thing, but saying there’s no
evidence is just a reflection of his lack of realization of the
wrongfulness of his acts, lack of rehabilitative potential.

The [c]ourt finds [Appellant] is a dangerous, violent and
manipulative man who seeks to victimize others. He
isolated and raped his own niece, sodomized her. The
[c]ourt also considers, not for purposes of sentencing in and
of itself, but for rehabilitative potential, while pending
sentencing on this matter, he’s received a write-up for
fighting and acts that would endanger another person while
in the York County Prison.

He told [V]ictim that he would hurt her if she told anyone,

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testimony this [c]ourt finds credible for sentencing
purposes. The [c]ourt notes and finds for purposes of
sentencing that [Appellant] absconded when he became
aware of these charges. That whole story about he’s going
to help out his sister with her car or something is completely
contrived, complete baloney and not convincing in the least.
As the Commonwealth pointed out the facts, [Appellant]
was aware and he fled.

All of these matters reflect an extreme criminal
predisposition, a lack of rehabilitative potential and a violent
nature that warrants sentencing in the aggravated range.
The [c]ourt is giving consideration to the sentencing
guidelines. The [c]ourt takes the sentencing guidelines very
seriously, but there are subtleties and subjective factors
that are not always captured in the sentencing guidelines.

And in order to protect the other members of this family
from [Appellant], from future vicious assault and to protect
the public at large from [Appellant], who is extremely
dangerous, the [c]ourt will be sentencing in the aggravated
range.

[Appellant] needs to remain incarcerated for a prolonged
period of time, one that is sufficiently extensive until such
time that he no longer presents a threat to society.

Accordingly, after a complete review of all of these matters
and the facts and consideration noted above, the [c]ourt
hereby sentences [Appellant] as follows: In 333 of 2016, in
Count 1, rape of a mentally disabled person, [Appellant] is
sentenced to a period of 9 to 18 years in a State Correctional
Institution, plus court costs.

Count 2, for the separate and distinct act of involuntary
deviate sexual intercourse with a mentally disabled person,
a sentence of 9 to 18 years in a State Correctional
Institution. That shall run consecutive to Count 1. Court
costs are assessed.

Count 3 merges.

(N.T. Sentencing, 12/18/17 at 14-21). We see no reason to disrupt the court’s

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broad sentencing discretion. See Walls, supra; Fullin, supra; Kenner,

supra.

The record confirms the court considered the applicable guidelines at

the sentencing hearing but chose to deviate from those guidelines. The court’s

statements make clear the court gave due consideration to the facts of this

case and to Appellant’s character and lack of rehabilitative potential, and

provided sound reasons for its deviation from the guidelines. See Kenner,

supra. See also Walls, supra. The court had the benefit of a PSI report,

so we can presume the court was aware of relevant information regarding

Appellant’s character and weighed those considerations along with any

mitigating factors. See Fowler, supra.

Additionally, nothing in the record supports Appellant’s bald allegation

of bias. Further, the court’s consideration of Appellant’s recent release from

jail at the time of the crimes at issue was proper. See Bowen, supra

(explaining appellant’s lack of significant job history, great emotional trauma

appellant’s crimes caused victim, as well as his recidivist history and violations

of probation were proper factors for court to consider when imposing

aggravated range sentence). Under these circumstances, we cannot say the

court’s imposition of an aggravated range sentence was “unreasonable.” See

id.; Kenner, supra. Therefore, Appellant’s third issue merits no relief.

Accordingly, we affirm.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/7/2019

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