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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES MERRELL FRANK :
:
Appellant : No. 1875 WDA 2019
Appeal from the Judgment of Sentence Entered June 28, 2018
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0001312-2017
BEFORE: MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 21, 2020
Appellant Charles Merrell Frank appeals from the judgment of sentence
entered by the Blair County Court of Common Pleas after a jury convicted
Appellant of Involuntary Deviate Sexual Intercourse (IDSI), Criminal
Conspiracy, Aggravated Assault, Assault by Prisoner, Aggravated Indecent
Assault, Terroristic Threats, Unlawful Restraint, Simple Assault (two counts),
False Imprisonment, Recklessly Endangering Another Person, and
Harassment.1 Appellant challenges the weight of the evidence supporting two
of his convictions and claims his aggregate sentence is excessive. We affirm.
Appellant was charged with the aforementioned offenses in connection
with the March 16, 2017 assault of C.S. (“the complainant”), a fellow inmate
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3123(a)(1), 903, 2702(a)(1), 2703(a), 3125(a)(2),
2706(a)(1), 2902(a)(1), 2701(a)(1) and (3), 2903(a), 2705, and 2709(a)(1).
respectively.
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in the Blair County Prison. The prosecution alleged that Appellant, along with
inmates Zachary Moore, Curtis Ramsey, Dalaun Carroll, Allen Grager, and
Maurice Wakefield conspired to confiscate a bag of tobacco that the
complainant had concealed in his rectum. Appellant was charged with IDSI
and Aggravated Indecent Assault based on allegations that Appellant
penetrated the complainant’s anus with a toothbrush and his fingers.
Following the assault, three of the inmates (Moore, Ramsey, Grager)
entered guilty pleas and received substantial prison sentences. Carroll agreed
to cooperate with the prosecution and was sentenced at a later date.
Appellant and Wakefield proceeded to a jury trial.
On the day in question, the complainant, who had been previously
housed in the F-Block of the prison, was transferred to E-Block as a result of
an internal infraction, and placed in Cell #7 with F.F. and two other inmates.
At the time of his transfer in the morning, the complainant had stored tobacco
in his shoes and his rectum. Shortly after his transfer, the complainant traded
the tobacco he had stored in his shoes for a line of Subutex and commissary
items from inmates Carroll and Ramsey. When the inmates asked for more
tobacco, the complainant indicated that he had additional tobacco stored in
his rectum. Notes of Testimony (N.T.), 4/2/18, at 98-102, 166-171; N.T,
4/3/18, at 15-18.
One of the complainant’s cellmates, F.F., testified that several hours
later, in the evening hours of March 16, 2017, three inmates (Ramsey, Grager,
and Moore) entered his cell. F.F. was alone in the cell while Appellant was in
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prison yard. The three inmates threw F.F. to the ground, held a shank to his
throat, and threatened to slit his throat in an attempt to get the tobacco that
they believed the complainant had hid in the cell. Once F.F. convinced his
attackers there was no tobacco in the cell, Ramsey, Grager, and Moore left
Cell #7. N.T., 4/2/18, at 103-107.
Later in the evening, before the cell lockdown at 10:00 p.m., the
complainant asserted that Appellant, Moore, Ramsey, Carroll, Grager, and
Wakefield lured him into Cell #1, where they cornered him and demanded
that he give them his tobacco. The men harassed the complainant and told
him that the tobacco retrieval could be done the “easy way” or the “hard way.”
Appellant admitted that he told the complainant that he “would prefer to do it
the hard way.” N.T., 4/2/18, at 173-182; N.T., 4/4/18, at 142.
The complainant agreed to give the inmates his tobacco and sat on the
toilet to push the tobacco out himself. After the complainant was unable to
retrieve the tobacco, Appellant put on gloves to extricate the tobacco from the
complainant’s rectum using his fingers with pressure such that the
complainant felt substantial pain. The complainant also indicated that he also
felt a hard object being thrust into his rectal cavity. After Appellant was unable
to retrieve the tobacco from the complainant’s rectum, the inmates punched
and kicked the complainant multiple times in his head and ribs, causing his
ear to be “split, ripped almost in half.” N.T., 4/2/18, 195. Following the
assault, there was blood and feces all over the toilet, on the floor, in the
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complainant’s underwear, and on toothbrushes in the sink. N.T., 4/2/18, at
185-196, 202.
The assault was stopped as cell lockdown time arrived at 10:00 p.m.
Before returning to his cell, Wakefield threatened the complainant’s cellmates
to ensure that the complainant delivered the tobacco. F.F. testified that when
the complainant returned to the cell after the assault, he appeared to be
beaten badly such that “the top part of his ear was cut off – almost off.” N.T.
4/2/18, at 130. F.F. also recalled that the complainant had a strong odor of
feces. After the complainant was eventually able to extricate the tobacco on
his own, F.F. put the tobacco in a sock and threw it over to a cell across the
prison where the other inmates were housed. N.T., 4/2/18, at 129-35.
The complainant reluctantly revealed the assault to prison officials when
his cellmates notified them that the complainant needed medical treatment.
While Appellant admitted that he initially denied being assaulted in a
statement to prison officials, he explained he did so as he was afraid that he
would be harmed by the other inmates when he returned to his cell. Appellant
recalled that Grager and Wakefield told him to keep his mouth shut or things
would get worse. The complainant eventually identified Appellant as the
individual who had penetrated his rectal cavity with his fingers and an object.
N.T. 4/2/18, at 41-48, 130-34, 207-211, 217.
The Commonwealth also offered the testimony of Dalaun Carroll, who
admitted that he entered into an agreement with Appellant, Ramsey,
Wakefield, Grager, and Moore to corner the complainant in a cell to steal his
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tobacco. While Carroll admitted the complainant was beaten in the cell, he
denied seeing Appellant or the other inmates attempting to retrieve the
tobacco from the complainant’s person but indicated that the complainant was
simply trying to do it himself. N.T., 4/3/18, at 12-18, 40-53.
C.M. and K.C., inmates who resided in Cell #1 at the time of the attack,
testified that after the group of inmates left their cell, there was blood and
feces everywhere and bloody toothbrushes in their sink. C.M. testified that
he witnessed the attack and observed Appellant moving his hand in and out
of the complainant’s anus. N.T., 4/3/18, at 97, 139-40.
The Commonwealth also presented the testimony of Sexual Assault
Nurse Examiner, Kevin Clark, who examined the complainant the night
following the attack. Clark observed that complainant exhibited no “evidence
of acute bleeding, and no dried blood at the rectum or visible findings such as
bruising, swelling, superficial lacerations or anything thereof to the rectal
region.” N.T., 4/3/18, at 87. However, Clark admitted that he did not perform
an internal examination as the complainant did not show external trauma or
report any rectal discomfort. N.T. 4/3/18, at 87-89.
Clark also testified that the mere fact that the complainant’s external
examination was normal did not mean he was not assaulted in the rectal area
as “the patient could still have presence of pain without any kind of visual
finding.” N.T., 4/3/18, at 87. Moreover, Clark indicated it was typically
uncommon to find injuries in an examination of a patient’s anus as the rectal
cavity heals pretty rapidly. N.T. 4/3/18, at 87-89.
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Appellant testified on his own behalf, admitting guilt for some of the
crimes charged, but denying the allegations of sexual assault. While Appellant
admitted putting on a glove and snapping it, he claimed that he did that only
to “terrorize” the complainant and motivate him to get the tobacco on his own.
Appellant denied touching the complainant’s anus and claimed that the
complainant attempted to retrieve the tobacco himself with toothbrushes and
a shampoo bottle. Appellant admitted that the other inmates began to attack
the complainant when the complainant was unable to retrieve the tobacco.
N.T. 4/4/18, 143-49.
Wakefield, Appellant’s co-defendant, testified similarly, indicating that
the other inmates kicked and punched the complainant after he could not
produce the tobacco, but denied that any of the inmates sought to retrieve
the tobacco from the complainant’s rectum. N.T., 4/5/18, at 54-59.
At the conclusion of trial, the jury convicted Appellant on all charges.2
On June 28, 2018, the trial court sentenced Appellant to ten to twenty years’
incarceration for IDSI, ten to twenty years’ incarceration for aggravated
assault, five to ten years’ imprisonment for aggravated indecent assault, and
three to six years’ incarceration for assault by prisoner. 3 These sentences
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2 The jury convicted Appellant’s co-defendant, Wakefield of similar charges.
Wakefield was sentenced to an aggregate term of nine to eighteen years’
imprisonment. After Wakefield appealed, this Court affirmed the judgment of
sentence. See Commonwealth v. Wakefield, 1306 WDA 2018 (Pa.Super.
November 8, 2019) (unpublished memorandum).
3 The trial court noted that Appellant’s sentences for IDSI, conspiracy, and
aggravated assault were mandatory minimum sentences applicable under 18
Pa.C.S.A. § 9714 as “second strike” offenses.
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were set to run consecutively. Appellant also received concurrent sentences
of ten to twenty years’ imprisonment for conspiracy and two terms of one to
two years’ imprisonment for terroristic threats and unlawful restraint. No
further penalties were imposed on the remaining charges. Thus, Appellant
initially received an aggregate sentence of twenty-eight to fifty-six years’ of
incarceration. Appellant did not file a post-sentence motion or an appeal.
On January 14, 2019, Appellant filed a pro se PCRA petition seeking the
reinstatement of his post-sentence and appellate rights. The Commonwealth
did not object to this petition, and on July 24, 2019, the lower court reinstated
Appellant’s post-sentence rights nunc pro tunc.
After Appellant filed a post-sentence motion, the trial court granted
Appellant’s relief in part based on his challenge to his mandatory minimum
sentences. On November 19, 2019, the trial court resentenced Appellant to
nine to eighteen years’ imprisonment for IDSI, seven to fourteen years’
imprisonment for conspiracy, and six to thirteen years’ for aggravated assault.
The other portions of the sentence order remained the same. Thus, Appellant
received an aggregate sentence of twenty-three to forty-seven years’
imprisonment. Appellant filed timely post-sentence motions, which were
subsequently denied. This appeal followed.
Appellant raises the following issues for our review:
1. Was the verdict of guilt on counts of Involuntary Deviate
Sexual Intercourse and Aggravated Indecent Assault was [sic]
against the weight of the evidence?
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2. Did the lower court abuse its discretion in sentencing
Appellant to an excessive term of imprisonment of 23 to 47
years, including consecutive sentences, which contravened
the fundamental norms of sentencing set forth in 42 Pa.C.S.A.
§ 9721(b)?
Appellant’s Brief, at 5.
Appellant first challenges the weight of the evidence supporting his
convictions for IDSI and Aggravated Indecent Assault. Our standard of review
is as follows:
An appellate court's standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court:
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the
verdict is against the weight of the evidence. Because the
trial judge has had the opportunity to hear and see the
evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the
trial judge when reviewing a trial court's determination that
the verdict is against the weight of the evidence. One of the
least assailable reasons for granting or denying a new trial
is the lower court's conviction that the verdict was or was
not against the weight of the evidence and that a new trial
should be granted in the interest of justice.
[Commonwealth v. Widmer], 560 Pa. [308,] 321–22, 744 A.2d
[745,] 753 [(2000)] (emphasis added).
This does not mean that the exercise of discretion by the trial court
in granting or denying a motion for a new trial based on a
challenge to the weight of the evidence is unfettered. In describing
the limits of a trial court's discretion, we have explained:
The term “discretion” imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion
within the framework of the law, and is not exercised for the
purpose of giving effect to the will of the judge. Discretion
must be exercised on the foundation of reason, as opposed
to prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused where the course pursued
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represents not merely an error of judgment, but where the
judgment is manifestly unreasonable or where the law is not
applied or where the record shows that the action is a result
of partiality, prejudice, bias or ill-will.
Widmer, 560 Pa. at 322, 744 A.2d at 753 (quoting Coker v. S.M.
Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184–85
(1993)).
Commonwealth v. Clay, 619 Pa. 423, 64 A.3d 1049, 1055 (2013) (some
internal citations omitted). In order for an appellant to be entitled to a new
trial on the grounds that the verdict is against the weight of the evidence, “the
evidence must be so tenuous, vague and uncertain that the verdict shocks the
conscience of the court.” Commonwealth v. Akhmedov, 216 A.3d 307, 326
(Pa.Super. 2019) (en banc).
Appellant challenges his convictions for IDSI and Aggravated Indecent
Assault, both of which require proof that Appellant penetrated the victim. To
be convicted of IDSI under Section 3123(a)(1) of the Crimes Code, the
Commonwealth must prove that the accused “engage[d] in deviate sexual
intercourse with a complainant … by forcible compulsion.” 18 Pa.C.S.A. §
3123(a)(1). The Crimes Code defines “[d]eviate sexual intercourse” as:
[s]exual intercourse per os or per anus between human beings
and any form of sexual intercourse with an animal. The term also
includes penetration, however slight, of the genitals or anus of
another person with a foreign object for any purpose other than
good faith medical, hygienic or law enforcement procedures.
18 Pa.C.S.A. § 3101.4
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4Our Supreme Court has held that “[d]igital penetration does not fall within
any of the conduct described by our legislature as sexual intercourse or
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To be convicted of Aggravated Indecent Assault under Section
3125(a)(2) of the Crimes Code, the Commonwealth must show that the
accused “engage[d] in penetration, however slight, of the genitals or anus of
a complainant with a part of the person's body for any purpose other than
good faith medical, hygienic or law enforcement” and “the person does so by
forcible compulsion.” 18 Pa.C.S.A. § 3125(a)(2).
Appellant concedes that the Commonwealth could charge him
separately with IDSI for the allegation of penetration of the complainant’s
anus with a foreign object (toothbrush) and Aggravated Indecent Assault for
the allegation of digital penetration. However, Appellant limits his weight
challenge to suggest that the Commonwealth did not meet its burden of
proving the element of penetration beyond a reasonable doubt.
Appellant specifically argues that while the complainant claimed that
Appellant penetrated his anus with his fingers and toothbrushes, the
complainant admitted that he did not see the individual who was behind him
or the object that was used. In addition, Appellant notes that the complainant
initially denied being assaulted, did not immediately request medical
assistance, did not report to the nurse that he had been assaulted with a
foreign object, and did not sustain any injury to his anus as reported in a
subsequent examination by a sexual assault nurse examiner.
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deviate sexual intercourse.” Commonwealth v. Kelley, 569 Pa. 179, 187,
801 A.2d 551, 555 (2002).
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In denying Appellant’s challenge to the weight of the evidence, the trial
court noted that the prosecution offered ample, credible testimony to
corroborate the complainant’s account of the assault. C.M., an inmate who
resided in the cell where the assault took place, testified that he witnessed
the attack and observed Appellant’s hand going in and out of the complainant’s
rectum. Several inmates testified to the condition of that cell after the assault,
reporting that there was blood and feces everywhere, including on a pair of
gloves in the toilet and toothbrushes in the sink. Appellant admitted to
wearing gloves during the assault, but claimed he did it only to scare the
complainant.
While the complainant conceded that he denied being assaulted in an
initial statement to prison officials, he explained he did so as he was afraid
that he would be harmed by the other inmates when he returned to his cell.
The complainant recalled that several of the inmates that participated in the
assault told him to keep his mouth shut or things would get worse.
We also reject Appellant’s claim that the complainant’s medical
examination proved that he was not assaulted. While Sexual Assault Nurse
Examiner Clark examined the complainant nearly one day after the assault
occurred and noted that the complainant exhibited no external bleeding or
external trauma, Clark did not perform an internal examination. Moreover,
Clark emphasized that the absence of injury to an individual’s anus does not
invalidate the individual’s claim that they had been assaulted.
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As a result, in reviewing all the evidence presented at trial, we find that
the trial court did not abuse its discretion in finding that the jury’s verdicts
were supported by the weight of the evidence.
Appellant also argues that the trial court abused its discretion in running
his sentences consecutively, resulting in an excessive aggregate sentence.
The following principles apply to our consideration of Appellant's challenge to
the discretionary aspects of his sentence:
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to an appeal as of right. Prior to reaching the
merits of a discretionary sentencing issue[, w]e conduct a four-
part analysis to determine: (1) whether appellant has filed a
timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether
the issue was properly preserved at sentencing or in a motion to
reconsider and modify sentence, see Pa.R.Crim.P. 720; (3)
whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code, 42
Pa.C.S.A. § 9781(b).
When appealing the discretionary aspects of a sentence, an
appellant must invoke the appellate court's jurisdiction by
including in his brief a separate concise statement demonstrating
that there is a substantial question as to the appropriateness of
the sentence under the Sentencing Code. The requirement that an
appellant separately set forth the reasons relied upon for
allowance of appeal furthers the purpose evident in the
Sentencing Code as a whole of limiting any challenges to the trial
court's evaluation of the multitude of factors impinging on the
sentencing decision to exceptional cases.
Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa.Super. 2018)
(quotation marks, some citations, and emphasis omitted).
In this case, Appellant has: (1) timely filed a notice of appeal, (2)
preserved the instant issue in a post-sentence motion, and (3) included a Rule
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2119(f) statement in his brief. We turn to the next requirement: whether
Appellant raised a substantial question meriting our discretionary review. This
Court has recognized that:
[t]he determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. 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.
Id. (quotation marks and some citations omitted).
Appellant challenges the trial court’s decision to impose consecutive
sentences that amounted to an aggregate sentence of twenty-three to forty-
seven years’ imprisonment. This Court has specifically held that:
[a] sentencing court's decision to impose consecutive as opposed
to concurrent sentences generally does not present a substantial
question. See Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa.
Super. 2014) (noting that the decision to impose consecutive or
concurrent sentences lies within the discretion of the trial court).
However, “the imposition of consecutive, rather than concurrent,
sentences may raise a substantial question... where the aggregate
sentence is unduly harsh, considering the nature of the crimes and
length of imprisonment.” Commonwealth v. Moury, 992 A.2d
162, 171–172 (Pa. Super. 2010). Accord Commonwealth v.
Mastromarino, 2 A.3d 581, 587 (Pa.Super. 2010) (“[A
substantial question is presented when] the decision to sentence
consecutively raises the aggregate sentence to, what appears
upon its face to be, an excessive level in light of the criminal
conduct at issue”).
Commonwealth v. Sarvey, 199 A.3d 436, 455–56 (Pa.Super. 2018).
[A] defendant may raise a substantial question where he receives
consecutive sentences within the guideline ranges if the case
involves circumstances where the application of the guidelines
would be clearly unreasonable, resulting in an excessive sentence;
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however, a bald claim of excessiveness due to the consecutive
nature of a sentence will not raise a substantial question.
Commonweatlh v. Diehl, 140 A.3d 34, 45 (Pa.Super. 2016) (citation
omitted).
Appellant asserts that the trial court abused its discretion in ordering his
standard range sentences to run consecutively as he argues that the grounds
for his charges involves conduct that arose in one criminal episode. While
Appellant concedes that his IDSI and Aggravated Indecent Assault convictions
were based on separate actions involving foreign object and digital penetration
of the complainant’s anus, he asserts that “this distinction does not justify
separate consecutive sentences for both offenses.” Appellant’s Brief, at 19.
Appellant similarly concedes that his convictions for Aggravated Assault and
Assault by Prisoner do not merge, but claims there is no justification for
running these sentences consecutively.
Even assuming that Appellant has raised a substantial question for our
review, it is well-established that “defendants convicted of multiple offenses
are not entitled to a ‘volume discount’ on their aggregate sentence.”
Commonwealth v. Foust, 180 A.3d 416, 434 (Pa.Super. 2018). This Court
has held that “[t]he mere fact that the crimes arose out of the same incident
does not mean that Appellant is entitled to receive concurrent sentences.”
Commonwealth v. Bonner, 135 A.3d 592, 605 (Pa.Super. 2016).
While an inmate in the Blair County Prison, Appellant committed distinct
crimes against a fellow inmate when he chose to forcibly penetrate the
complainant’s anus with his fingers and a toothbrush. Appellant was also
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criminally liable for the violent attack against the complainant in which
Appellant’s co-conspirators repeatedly punched and kicked the complainant’s
head with such force that they split his ear. We reject Appellant’s suggestion
that he is entitled to a volume discount for these crimes.
Accordingly, we conclude that the trial court properly exercised its
discretion in imposing consecutive sentences.
For the foregoing reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2020
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