Com. v. Theilacker, S.

J-S17022-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee

v.

STEPHEN WILLIAM THEILACKER

Appellant No. 1700 MDA 2019

Appeal from the Judgment of Sentence September 12, 2019
In the Court of Common Pleas of Berks County
Criminal Division at No: CP-06-CR-0004834-2018

BEFORE: PANELLA, P.J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY STABILE, J.: FILED JULY 29, 2020

Appellant, Stephen William Theilacker, appeals from his judgment of

sentence of 19—50 years’ imprisonment for rape, involuntary deviate sexual

intercourse (“IDSI”), and aggravated indecent assault,1 and for lifetime sex

offender registration. Appellant argues that the verdict is against the weight

of the evidence, his sentence is excessive, and his lifetime registration

requirement is unconstitutional. We affirm.

The trial court accurately summarized the evidence as follows:

In May of 2016, Coleen Hutchinson (“the Victim”) was walking
with crutches along Penn Avenue in Reading, Pennsylvania when
Appellant . . . approached the Victim and began to make small
talk, asking if she wanted a cigarette and whether she wanted to
go to the movies sometime. This initial encounter turned into a
friendship, though the Victim stated that the relationship never
progressed to anything more.

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1 18 Pa.C.S.A. §§ 3121, 3123 and 3125.
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In September of 2016, the Victim found herself homeless in the
rain, when she text[ed] Appellant, who responded that he had
somewhere that the Victim could stay. Earlier in the day, the
Victim had consumed alcohol and was under the influence of
heroin and cocaine. The Victim stated that she was, at the time,
sobering up from the effects of the alcohol and drugs, but
admitted that she hadn’t eaten for several days and was affected
by both the drug use and hunger as to her physical condition.
Appellant offered to take the Victim to an abandoned building
where she could stay. The Victim agreed and the two traveled to
an abandoned building at 614 Spruce Street in the area of Sixth
Street.

Once at the building, Appellant took the victim through a back
door and up at least two flights of stairs into a room that was bare
except for a mattress. Upon entering the room, the Victim made
it clear that she was there to sleep since it had been days since
she slept. Appellant and the Victim talked for a bit before the
Victim proceeded to lie down and go to sleep, while Appellant sat
on the mattress.

The Victim was awoken several times throughout the night. The
first time the Victim woke up, she observed Appellant sitting on
the bed. However, the second time the Victim woke up to find
Appellant’s hand over her mouth and nose and his knee between
her shoulder blades. Appellant held a knife to the Victim’s throat,
pulled her head back and told her not to make a noise. The two
struggled for approximately five minutes, during which Appellant
continued to insist that the Victim remain quiet while the Victim,
out of fear and because she could not breathe, urinated herself.
Quickly realizing that there was a real possibility she would not
make it out of the building alive, the Victim was able to calm
herself and began to speak with Appellant. The more the Victim
spoke with Appellant, the more relaxed Appellant seemed to
appear and he eventually loosened the hand over the Victim’s
face. Appellant then pulled neckties from his bag and tied the
Victim’s hands behind her back, while she was still situated on her
stomach on the mattress.

Appellant then flipped the Victim over on the mattress and
berate[d] her [with] insults and grievance[s]. Appellant ripped
the Victim’s shorts and underpants off of her and proceeded to
perform non-consensual oral sex on the Victim, as well as digitally

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penetrating the Victim. Appellant subsequently got on top of the
Victim and raped her until ejaculating.

After raping the Victim, Appellant then placed his penis inside the
Victim’s mouth until he ejaculated into her mouth and onto her
face. Appellant continued to berate the Victim verbally throughout
the assault. After a period of lying on the mattress, [Appellant]
forced the Victim to get on top of him until he again ejaculates.
[Appellant] untied the Victim, who then described “blacking out”
at that point, but indicated that at that time, it was daylight
outside.

When the Victim awoke, it was morning and Appellant told the
Victim that he was going to the church in order to get food because
the church was serving breakfast. Appellant also told the Victim
that he was going to obtain cigarettes. As he left, Appellant took
the neckties that he had earlier used to tie the Victim’s hands, as
well as the knife he held to her throat.

After Appellant left, the Victim located her glasses and sneakers
and found an extra pair of shorts from her bag to put on. The
Victim walked out of the building where she saw a woman standing
at her car. The Victim asked to borrow the woman’s phone and
then called 9-1-1, telling the operator that she had been assaulted
and needed an ambulance.

The Victim stated that she possessed a cell phone, which was the
only tool she had in order to communicate with other people in
her life. The Victim stated that prior to the rape, Appellant took
the Victim’s phone.

Once an officer showed up, the Victim took the officer to the
abandoned house where the assault occurred. The Victim was
then transported by ambulance to the hospital where a sexual
assault examination was performed.

Officer Lance Lonsinger of the Reading City Police Department was
called to the scene upon the Victim’s 9-1-1 call. Upon arrival,
Officer Lonsinger met with the Victim, who was upset and
distraught. The Victim described being tied up and the
subsequent rape and assault to Officer Lonsinger. The Victim took
the officer to the abandoned building where the rape and assault
occurred, but did not go inside.

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After the Victim left in the ambulance, Officer Lonsinger waited for
additional officers and then proceeded to perform a security sweep
of the building for safety. Finding no one in the building, Officer
Lonsinger found the southeast bedroom on the third floor of 614
Spruce Street where the Victim described the rape and assault as
having occurred. Officer Lonsinger found a mattress in the
bedroom with a disheveled comforter on the bed, along with a
white towel on the bed and a pair of black shorts with pink
underwear laying on the floor.

Officer Lonsinger also described finding a small piece of rope in
the bedroom. Officer Lonsinger did not observe any neckties or
find a knife in the bedroom. Officer Lonsinger proceeded to
process the scene, which included collecting evidence and taking
photographs. Upon moving the comforter, Officer Lonsinger found
two more white towels. Officer Lonsinger collected the comforter,
the clothing, the towels and the small piece of rope from the
bedroom. The various items were transported to city hall and
entered into evidence.

Within a few hours, Officer Lonsinger interviewed the Victim at
Reading Hospital. During his interview with the Victim, Officer
Lonsinger learned that the rope found in the bedroom was not
used during the rape and assault. The rope was then removed
from evidence and subsequently discarded. In the course of
speaking with the Victim, Officer Lonsinger did not observe any
striking bruises or ligature marks on her wrists.

Jeri Shipps, a registered nurse at Reading Hospital who specializes
in sexual assault examinations, performed a sexual assault
examination of the Victim on September 13, 2016. After
discussing the information with the Victim, Nurse Shipps collected
physical evidence from the Victim, including swabs from the
Victim’s mouth, vagina, rectum and a buccal swab. Nurse Shipps
noted that the Victim, though distraught, was cooperative in the
examination. After having collected the various samples, Nurse
Shipps packaged the evidence, preserving for remand of the
evidence into police custody. Nurse Shipps indicated that the
Victim did not display any bruises or ligatures during the
examination.

Criminal Investigator David Lehman (“C.I. Lehman”) from the
Reading City Police Department [investigated] the charges. In
January of 2017, C.I. Lehman interviewed the Victim and, as a

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result, prepared a search warrant for [Appellant]’s DNA, which
was thereafter granted. After serving the search warrant on
[Appellant], C.I. Lehman took a buccal sample from [Appellant],
which was then secured for further testing.

When C.I. Lehman first recited the probable cause statement from
the search warrant, [Appellant] denied any knowledge of the
incident. On February 2, 2017, [Appellant] agreed to an interview
with C.I. Lehman at the Reading Police Department criminal
investigations office, which was recorded and portions of which
were shown at the trial in this matter. Appellant was cooperative
with the investigation.

At trial, the parties stipulated to the chain of custody of the
evidence collected, including items from the scene and the
samples provided by the Victim and Appellant. The parties further
stipulated that a forensic examination and DNA analysis was
completed on the evidence submitted. The results of the
examination and analysis included that the vaginal and rectal
swabs collected from the Victim were consistent with DNA samples
collected from Appellant and that samples collected from the white
towels found at the scene were consistent with DNA collected from
Appellant.

Appellant likewise testified at trial that he and the Victim first met
on Penn Avenue in the city of Reading in the summer of 2016.
Appellant stated that at the time he met the Victim, he was in a
program for those transitioning from prison into the general
public. Appellant claimed that he understood the relationship
between himself and the Victim to be one in the nature of a sexual
relationship between two consenting adults. Furthermore,
Appellant, in his interview with C.I. Lehman, explained that he and
the Victim had engaged in various consensual sexual encounters
at different locations. Appellant also claimed that subsequent to
the rape and assault, the Victim contacted him on several
occasions in an attempt to blackmail him for money that the Victim
allegedly owed a drug dealer.

Appellant testified that on September 12, 2016, the Victim
contacted him by phone that “she wanted to party and to have
sex in the abandoned house,” but that he refused because he
wanted to spend time with his son. On September 13, 2016,
Appellant claimed that after receiving a text from the Victim early
in the morning, he met with the Victim on Cherry Street in Reading

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and the two began to walk together, arriving at 614 Spruce Street
where Appellant and the Victim had consensual sex, ate food and
smoked crack cocaine.

Appellant claimed that after having sex, he cleaned himself and
the Victim up with towels that he brought. Appellant claimed that
he lied to C.I. Lehman regarding the last time he had sex with the
Victim because he had been threatened by the Victim and others
on her behalf. On cross-examination, Appellant denied ever
having bound the Victim’s hands with a necktie and repeated his
claims that the Victim and others had threatened him with
violence or reporting to the police unless he gave the Victim
money.

Trial Court Opinion, 12/12/19, at 1-5 (citations omitted).

The jury found Appellant guilty of rape, IDSI and aggravated indecent

assault as well as other offenses that merged for purposes of sentencing. The

court ordered an investigation by the Sexual Offenders Assessment Board. At

sentencing, the court found that Appellant was not a sexually violent predator,

but it imposed consecutive sentences for rape, IDSI and aggravated indecent

assault2 and ordered Appellant to register for life as a sex offender. Appellant

filed timely post-sentence motions challenging the weight of the evidence and

seeking modification of sentence. The court denied Appellant’s post-sentence

motions, and this timely appeal followed. Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

Appellant raises three issues on appeal:

____________________________________________

2 The court sentenced Appellant to 7½—20 years’ imprisonment for rape,
7½—20 years’ imprisonment for IDSI and 4—10 years’ imprisonment for
aggravated indecent assault.

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1. Whether the trial court abused its discretion in accepting the
Jury’s verdict, where the verdict was against the weight of the
evidence.

2. Whether the sentencing court abused its discretion when
sentencing Appellant by running the sentence on each count
consecutively, rather than concurrently.

3. Whether the lifetime sex offender registration is
unconstitutional and/or illegal.

Appellant’s Brief at 14.

Appellant first argues that the trial court should have “denied the

verdict” and granted a new trial because the verdict was against the weight

of the evidence. Id. at 29. We disagree.

The weight of the evidence is a matter exclusively for the finder of fact,

who is free to believe all, part, or none of the evidence and to determine the

credibility of the witnesses. Commonwealth v. Gonzalez, 109 A.3d 711,

723 (Pa. Super. 2015). A new trial is not warranted because of “a mere

conflict in the testimony” and must have a stronger foundation than a

reassessment of the credibility of witnesses. Id. 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. On appeal, “our purview is extremely

limited and is confined to whether the trial court abused its discretion in finding

that the jury verdict did not shock its conscience.” Id. Thus, “appellate review

of a weight claim consists of a review of the trial court's exercise of discretion,

not a review of the underlying question of whether the verdict is against the

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weight of the evidence.” Id. An appellate court may not reverse a verdict

unless it is so contrary to the evidence as to shock one’s sense of justice. Id.

According to Appellant, the victim texted him on the day of the incident

to find a place to stay for the night. He had a prior consensual sexual

relationship with the victim, and they engaged in consensual sex that night.

Her account of the events was doubtful because she was sleep-deprived and

under the influence of drugs and alcohol. Her testimony that she urinated

during Appellant’s assault was not credible, because the mattress she was

lying on was dry, and it would have been wet had she actually urinated.

Finally, she had no bruises, cuts, or marks that would indicate that she was

tied up, forcibly raped, or assaulted.

Appellant overlooks substantial evidence of guilt that the

Commonwealth presented during trial. The victim described the events

culminating in the rape and assault, including her platonic, non-sexual

relationship with Appellant and her own criminal background and drug and

alcohol abuse. She candidly admitted suffering the effects of drug use during

the rape and assault. Although unable to provide specific times, she provided

the date of the events and was able to identify whether they occurred while it

was dark or light outside. She promptly reported the crime and was

cooperative throughout the investigation and intrusive rape kit examination.

The police investigator discovered the towels, underwear and shorts that she

described. Forensic testing confirmed the presence of Appellant’s DNA on

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towels in the room and in samples from the victim’s body. Furthermore,

Appellant’s account of the events lacked credibility because it changed over

time. During pretrial interviews with C.I. Lehman, he denied having any sex

with the victim, consensual or otherwise, but during trial, after the

Commonwealth introduced evidence of DNA in samples from the victim’s body,

Appellant testified that he had consensual sex with the victim.

In short, ample evidence supports the verdict, and the jury was free to

believe the victim’s, and the Commonwealth’s, version of events instead of

Appellant’s. It was within the trial court’s discretion to determine that the

verdict did not shock its conscience.

In his second argument, Appellant contends that the trial court abused

its discretion by imposing consecutive sentences for what amounted to “one

interaction” with the victim. Appellant’s Brief at 36. We disagree.

Appellant must satisfy four factors in order for this Court to consider his

challenge to the discretionary aspects of his sentence. We must consider: (1)

whether he has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903;

(2) whether he properly preserved the issue 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 he

presents a substantial question that his sentence is not appropriate under the

Sentencing Code, see 42 Pa.C.S.A. § 9781(b). Commonwealth v. Samuel,

102 A.3d 1001, 1006-07 (Pa. Super. 2014). Appellant satisfied the first three

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factors by filing a timely notice of appeal, challenging the length of his

sentence in post-sentence motions and including a Pa.R.A.P. 2119(f)

statement in his brief explaining why this Court should address his sentencing

argument. With regard to the fourth factor, whether Appellant has raised a

substantial question, although bald claims of an excessive sentence do not

raise a substantial question, Commonwealth v. Swope, 123 A.3d 333, 339

(Pa. Super. 2015), “an excessiveness claim in conjunction with an assertion

that the court did not adequately consider a mitigating factor may present a

substantial question.” Commonwealth v. Zeigler, 112 A.3d 656, 662 (Pa.

Super. 2015). Appellant asserts an excessive sentence and the court’s failure

to consider mitigating factors. We therefore, will consider the merits of his

claim.

The trial court rejected Appellant’s “one interaction” argument,

reasoning:

The Victim testified that Appellant first performed oral sex on her
and digitally penetrated the Victim. Appellant then got on top of
the Victim and proceeded to raped her. Almost immediately
thereafter, Appellant forced the Victim to perform oral sex on him.
After a period of rest, Appellant then forced the Victim to get on
top of him again. The acts from which the separate charges flow
are distinct offenses that, although perpetrated in sequential and
rapid succession, are discrete crimes under the law. The mere
fact that Appellant committed the crimes within brief period is not
convincing as to be considered a single criminal act. As such, we
find that the alleged error is without merit.

Trial Ct. Op. at 10.

Appellant also challenges the court’s sentence on the basis that
the consecutive nature of the sentences was excessive in light of

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the factors set forth in 42 Pa.C.S.A. § 9721(b). Appellant does
not contend that the sentence exceeds statutory limits, but
instead, that it fails to comport with a consideration of Appellant’s
rehabilitative needs.

Sentencing is a matter vested in the sound discretion
of the sentencing judge, and a sentence will not be
disturbed on appeal absent a manifest abuse of
discretion. In this context, an abuse of discretion is
not shown merely by 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. Raven, 97 A.3d 1244, 1253 (Pa. Super.
2014). Additionally, “[i]t is well settled that imposition of
consecutive rather than concurrent sentences rests within the trial
court’s discretion,” and that a defendant convicted of multiple
offenses is not entitled to a “volume discount” on the aggregate
sentence. Commonwealth v. Foust, 180 A.3d 416, 434 (Pa.
Super. 2018). “[T]o constitute an abuse of discretion, a sentence
must either exceed the statutory limits or be manifestly
excessive.” Commonwealth v. Rooney, 442 A.2d 773, 774-75
(Pa. Super. 1982).

At the sentencing hearing of Appellant, this court set forth
extensively the reasons and considerations taken into account in
imposing sentence upon Appellant. We likewise placed those
reasons on the record, which included our review of the testimony
presented at trial, the pre-sentence investigation report, the
severity of the crimes, the effects of the crime upon the Victim
and Appellant’s history. We also considered that Appellant was
not found to be a sexually violent predator, but we considered that
fact that the conduct was of such a nature that is seriously
condemned in society. The Superior Court has held that “where
the sentencing court imposed a standard-range sentence with the
benefit of a pre-sentence report, we will not consider the sentence
excessive.” Commonwealth v. Corley, 31 A.3d 293, 298 (Pa.
Super. 2011). Moreover, where the court has the benefit of a pre-
sentence investigation report, there is a presumption “that the
sentencing judge was aware of relevant information regarding the
defendant’s character and weighed those considerations along

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with mitigating statutory factors.” Commonwealth v. Luketic,
162 A.3d 1149, 1165 (Pa. Super. 2017).

This court extensively expressed our reasons for sentencing and
the factors considered on the record. We also had the benefit of
the pre-sentence investigation report. We find Appellant’s
argument that the sentence failed to consider his rehabilitative
needs to be unavailing.

Id. at 9-11. We agree with the trial court’s reasoning and conclude that it

acted within its discretion by imposing consecutive sentences for rape, IDSI

and aggravated indecent assault.

In his final argument, Appellant contends that his lifetime sex offender

registration requirement prescribed under SORNA3 is unconstitutional because

it exceeds the statutory sentencing maximum for the offenses that Appellant

was convicted of committing. We recently rejected the same argument in

Commonwealth v. Prieto, 206 A.3d 529 (Pa. Super. 2019). There, the

defendant argued that his requirement to register for fifteen years as a Tier I

offender under SORNA was both an illegal sentence and “cruel and unusual”

punishment, because the statutory maximum penalty for the crime to which

he pled nolo contendere was only seven years. We held:

In Commonwealth v. Strafford, 194 A.3d 168 (Pa. Super.
2018), a panel of this Court held that our legislature could—and
did—create multiple types of punishment for a given crime. Thus,
we held the legislature may punish sex-offenders by both a
statutory-maximum incarceration period and a limitless SORNA-
registration period thereafter. See id. We held those two
punishments are separate and distinct. See id. Accordingly, sex-
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3The Sex Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S.A.
§§ 9799.10—9799.41.

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offenders’ SORNA registration periods are unrelated to whatever
maximum-incarceration period Chapter 11 of the Crimes Code
establishes for their crimes. Specifically, we recognized the
following:

In SORNA, the legislature authorized courts to include
periods of registration as part of a sentence. Similar
to the treatment of the payment of fines or restitution,
the legislature did not tie the period of registration to
the length of incarceration. See 42 Pa.C.S.[A.] §
9799.14 (“Sexual offenses and tier system”); 42
Pa.C.S.[A.] § 9799.15 (“Period of registration”).
SORNA’s registration provisions are not constrained
by [18 Pa.C.S.A. §] 1103. Rather, SORNA’s
registration requirements are an authorized, punitive
measure separate and apart from [the] [a]ppellant’s
term of incarceration. The legislature did not limit the
authority of a court to impose registration
requirements only within the maximum allowable
term of incarceration; in fact, the legislature
mandated the opposite and required courts to impose
registration requirements in excess of the maximum
allowable term of incarceration.

Strafford, 194 A.3d at 173.

Prieto, 206 A.3d at 535. This reasoning is on point and defeats Appellant’s

argument.

For these reasons, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 07/29/2020

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