NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 
 

COMMONWEALTH OF PENNSYLVANIA 

  IN THE SUPERIOR COURT OF 
           PENNSYLVANIA 

             

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v. 

 

 

AYNE ALLEN GRAY, JR.       

 

Appellant 

 No. 787 MDA 2022 

Appeal from the Judgment of Sentence Entered June 30, 2021 
In the Court of Common Pleas of Franklin County Criminal Division at 
No(s):  CP-28-CR-0001620-2018 

EFORE:  PANELLA, P.J., BENDER, P.J.E., and NICHOLS, J. 

MEMORANDUM BY BENDER, P.J.E.:        FILED: MARCH 21, 2023 

Appellant,  Wayne  Allen  Gray,  Jr.,  appeals  from  the  judgment  of 

sentence of 21 to 60 years of incarceration imposed following his convictions 

for  various  crimes  all  relating  to  the  physical  and  sexual  abuse  of  his 

occasional  romantic  partner,  Victim.    We  vacate  judgment  of  sentence  and 

remand for further proceedings. 

The  trial  court  ably  summarized  the  facts  as  presented  by  the 

Commonwealth at Appellant’s jury trial as follows: 

[V]ictim testified that she had a ‘friends with benefits’ relationship 
with Appellant and that, at the time, she was staying with him in 
his  apartment  located  in  the  Borough  of  Chambersburg.    In 
roughly the month leading up to July 27, 2018, Appellant had been 
away.  On July 27, 2018, Appellant returned to town with another 
female,  picked  [V]ictim  up  in  his  car,  and  the  three  returned  to 
the apartment and ‘hung out.’  After the other female left, [V]ictim 
and  Appellant  drank  alcohol,  smoked  marijuana,  and  had 
consensual sex. 

     

   

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At some point afterward, Appellant began insinuating that [V]ictim 
had sexual relations with one of his brothers while he was away, 
that  he  was  ‘giving  her  a  chance  to  admit  to  anything’  she  did, 
and that he wanted to hear it from her own mouth.  The accusation 
was  indeed  true,  but  [V]ictim  did  not  admit  it  to  Appellant.  
Appellant told [V]ictim that he was giving her that day to tell him, 
or the next day there would be consequences.   

The following morning, on Saturday, July 28, 2018, Appellant had 
left the apartment for reasons unknown to [V]ictim.  She awoke 
to the sound of Appellant knocking on the door for her to let him 
in,  which  she  did.    [V]ictim  testified  that  she  was  under  the 
influence  of  crack  cocaine  and  possibly  marijuana  at  the  time.  
While  in  the  kitchen,  Appellant  punched  her  in  the  face  with  a 
closed fist, causing her to fall to the floor.  Appellant was repeating 
over  and  over  that  [V]ictim  had  sex  with  his  brother.    [V]ictim 
testified  that  she  was  scared  for  her  life,  stating  that  he  had 
previously beaten her “for a lot less.”  

Appellant  first  removed  a  fork  from  a  kitchen  drain-board  and 
began  scratching  and  stabbing  [V]ictim  on  her  face,  arms,  and 
legs.    One  of  these  injuries  left  a  scar  on  her  thumb.    He  then 
grabbed a butter knife and began ‘jabbing’ [V]ictim ‘pretty much 
all  over,’  which  did  pierce  her  skin.    After  that,  he  grabbed  a 
sharper knife and cut off part of her hair.  While [V]ictim was lying 
on her back on the floor of the kitchen, she testified that Appellant 
then put his foot on her throat and began choking her to the point 
that  she  could  not  breathe.    [V]ictim  testified  that  she  felt  as 
though she was going to pass out and that, while she was being 
choked, she urinated herself [sic].  Appellant then became angry 
because  [V]ictim  was  ‘bleeding  everywhere’  and  he  told  her  to 
clean up the kitchen and take a shower. 

Shortly  thereafter  in  the  living  room,  Appellant  began  striking 
[V]ictim hard with  a wooden bat, striking  her in  the head, legs, 
and arms.  Appellant then went into his bedroom, put Vaseline on 
the wooden bat, and asked [V]ictim, ‘Where is it going?’  He then 
instructed [V]ictim to insert the wooden bat into her rectum while 
she performed fellatio on him.  When asked why she did not resist 
these attacks, [V]ictim testified that Appellant would have ‘forced 
it and did it himself and continued to hurt me if I didn’t.’ 

Later  on  in  the  evening,  [V]ictim  testified  that  Appellant  forced 
her  to have sexual intercourse with him in his bedroom, forcing 
his penis into her vagina.   [V]ictim testified that she was still in 

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pain from the earlier attack and did not consent to the intercourse.  
When  asked  why  she  did  not  fight  back  or  resist  during  either 
encounter,  she  indicated  that  she  was  afraid  of  him  and  that  ‘it 
would not have mattered’ and ‘he would have taken control and 
done it anyway.’  [V]ictim further testified that Appellant kept a 
close eye on her, even checking on her if she was in the bathroom 
for too long, and that there were locks on the door which made 
her feel that she could not leave. 

Two days later on Monday, July 30, 2018, [V]ictim accompanied 
Appellant’s  brother  and  another  female  to  take  Appellant  to  an 
appointment, which [V]ictim saw as an opportunity to get away.  
She asked Appellant’s brother to take her to the house in which 
her mother was staying.  [V]ictim’s mother called 911 and [V]ictim 
was taken to the hospital via ambulance.  When [V]ictim explained 
what  had  happened  to  staff  there,  they  contacted 
law 
enforcement. 

Based on [V]ictim’s statements, police promptly obtained a search 
warrant  for  Appellant’s  apartment.    The  evidence  collected 
corroborated  [V]ictim’s  version  of  events.    [V]ictim’s  blood  was 
found throughout the apartment, including on a pair of men’s size 
13 shoes which the Commonwealth posited Appellant was wearing 
during the attack.  A significant bloodstain was identified on a sofa 
in the living room, near a stain later identified to be Appellant’s 
semen.    A  bucket  containing  bloody  rags  was  located  in  the 
bathroom.  A container of petroleum jelly was found in Appellant’s 
bedroom.  The wooden bat was found on the floor of the bedroom.  
A  clump  of  [V]ictim’s  hair  was  found  behind  the  toilet  in  the 
bathroom.  Three utensils were found in the kitchen sink, including 
a fork with a bent prong and a butter knife with a bent blade, as 
well as a knife believed to have been used to cut [V]ictim’s hair. 

Several  photographs  of  [V]ictim’s  injuries  were  admitted  into 
evidence.    [V]ictim  had  numerous  bruises  all  over  her  body, 
including on her back, chest, arms, neck, and face.  [V]ictim also 
had a bruise on her arm consistent with a fork.  The police officer 
who first interacted with [V]ictim testified that she had bruises on 
her legs and one of her ears, as well as on her chest.  A CAT scan 
revealed bleeding on  [V]ictim’s  brain.   The sexual assault  nurse 
examiner who examined [V]ictim observed that she had two tears 
measuring 5 millimeters in length within the labia minora, which 
the nurse testified is usually associated with a degree of force. 

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A sexual assault kit was used to collect samples from  [V]ictim[] 
and  was  sent  for  forensic  analysis,  along  with  other  samples 
collected from the apartment.  The report for these samples was 
admitted  into evidence, and a forensic DNA scientist testified to 
its findings and accuracy.  Forensic testing discovered  [V]ictim’s 
DNA  on  the  wide-end  of  the  bat.    All  of  the  blood  samples, 
including the blood on the shoes, walls, and sofa – also matched 
[V]ictim.  Appellant’s sperm was identified from the swab taken 
from [V]ictim’s vagina.   

Trial Court Opinion, 2/3/22, at 2-6 (footnotes omitted) (hereinafter “TCO”).1   

 

Appellant  was  sentenced  on  June  30,  2021.    Appellant  chose  to 

represent himself at that proceeding and later filed an untimely, pro se post-

sentence motion on July 16, 2021, which raised numerous claims, including 

ineffective  assistance  of  counsel.    The  post-conviction  court  construed  the 

motion as a request for relief under the Post-Conviction Relief Act (“PCRA”),2 

and  appointed  counsel  to  represent  Appellant.    Counsel  filed  a  motion 

requesting that the trial court treat the post-sentence motion as timely due to 

application  of  the  prisoner  mailbox  rule,  and  represented  that  Appellant 

stamped his post-sentence motion on July 1, 2021.  The trial court granted 

this request and deemed the post-sentence motion timely.  The post-sentence 

motion was denied by operation of law on November 17, 2021, but no order 

was entered.  Appellant filed a protective notice of appeal on December 10, 

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1  The trial court explained in a footnote that the “wooden bat” was “described 
in a variety of ways throughout trial” and was admitted into evidence.  TCO 
at  4  n.26.    The  court  stated  that  the  bat  “is  certainly  not  appropriately 
described as a ‘baseball bat’” and explained that it is similar to a dowel rod.  
For the sake of continuity, the trial court referred to the item as a “bat” and 
we shall do the same.   

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 42 Pa.C.S. §§ 9541-9546.   

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2021, docketed at 1628 MDA 2022.  The trial court ordered Appellant to file a 

concise statement of matters complained of on appeal on December 14, 2021. 

 

During  the  pendency  of  that  appeal,  Appellant  filed  a  second  post-

sentence motion on February 25, 2022, arguing that the Commonwealth had 

promised Victim leniency regarding her own outstanding charges in exchange 

for  her  testimony  against  Appellant.    See  Pa.R.Crim.P.  720(C)  (“A  post-

sentence  motion for  a new  trial on the ground of after-discovered evidence 

must  be  filed  in  writing  promptly  after  such  discovery.”).    Appellant  also 

requested a remand from this Court to address the motion, as approved by 

the  Rule’s  comment.    Comment  to  Rule  720  (“[A]fter-discovered  evidence 

discovered during the post-sentence stage must be raised promptly with the 

trial judge at the post-sentence stage; after-discovered evidence discovered 

during  the  direct  appeal  process  must  be  raised  promptly  during  the  direct 

appeal  process,  and  should  include  a  request  for  a  remand  to  the  trial 

judge[.]”).   

This  Court  quashed  the  appeal  and  denied  the  request  for  remand  as 

moot.  See Order at 1628 MDA 2022, 3/9/22.  Our order explained that this 

Court had previously issued a rule to show cause why the appeal should not 

be quashed, as the docket reflected that no order had been entered denying 

the  post-sentence  motion  by  law.    Appellant  supplied  this  Court  with  proof 

that he filed a praecipe for entry of an order denying the post-sentence motion 

by law on February 7, 2022.  However, as of March 9, 2022, the docket did 

not show that an order denying the post-sentence motion had been entered.  

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We  thus  instructed  the  trial  court  to  issue  separate  orders  addressing 

Appellant’s post-sentence motion for a new trial and his original post-sentence 

motion.    We  also  deemed  the  request  to  remand  as  moot.    The  trial  court 

thereafter entered separate orders on May 3, 2022.   

Appellant filed a notice of appeal.  See Notice of Appeal, 5/20/22, at 1 

(single page filing) (“Notice is hereby given that [Appellant] … hereby appeals 

… from the Opinion and Order of Court denying [Appellant]’s Post-Sentence 

Motion dated May 3rd, 2022.”).3  Appellant raises the following issues for our 

review: 

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3  We  conclude  that  the  separate  post-sentence  motion  based  on  the  after-
discovered evidence claim was incorporated into the judgment of sentence as 
made  final  by  the  denial  of  Appellant’s  original  post-sentence  motion.    See 
Commonwealth  v.  Beeman,  847  A.2d  87,  87  n.1  (Pa.  Super.  2004) 
(“[A]ppeal  properly  lies  from  the  judgment  of  sentence  made  final  by  the 
denial of post-sentence motions[.]”) (citation omitted).   
 

As  the  Comment  to  the  Rule  reflects,  a  claim  for  after-discovered 
evidence discovered during the post-sentence motion stage is properly before 
the trial court in the first instance, whereas remand is required when this Court 
has jurisdiction during the direct appeal process.  A breakdown in the process 
occurred  when  the  clerk  of  courts  failed  to  deny  Appellant’s  original  post-
sentence motion by operation of law.   See Commonwealth v. Khalil, 806 
A.2d 415, 420 (Pa. Super. 2002) (stating that “failure of the clerk of courts to 
issue an order ... deeming the [a]ppellant’s post-sentence motions denied by 
operation of law, was a breakdown of the processes of the trial court”).  Thus, 
we could have treated the original appeal as timely based on that breakdown.  
However, we would then be forced to remand to address the newly-discovered 
evidence claim.   
 

In effect, until now, this Court had not decided whether the Rule 720(C) 
motion was filed during the normal post-sentence motion period or whether it 
was filed during the “direct appeal process.”  Due to the combination of our 
(Footnote Continued Next Page) 

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1.  Whether  the  [t]rial  [c]ourt  erred  in  denying  [Appellant]’s 
request for a new trial based upon the Commonwealth’s failure to 
disclose  that  [Victim]  …  would  receive  a  plea  bargain  in 
consideration of her testimony against [Appellant][.] 

2.  Whether  the  [t]rial  [c]ourt  erred  in  denying  [Appellant]’s 
Pretrial Motion to Suppress Evidence due to an illegal search of a 
premises not referenced in the application for search warrant[.] 

3.  Whether  the  [t]rial  [c]ourt  erred  in  denying  [Appellant]’s 
Pretrial Motion to Suppress Evidence due to certain evidence not 
described in the search warrant being seized without authority[.] 

4. Whether the [t]rial [c]ourt erred in allowing Nurse Nancy Bates 
to  testify  to  statements  of  [V]ictim  in  violation  of  the  rules  of 
evidence prohibiting hearsay[.] 

5. Whether  the evidence was sufficient to convict  [Appellant]  of 
Involuntary  Deviate  Sexual  Intercourse  [(“IDSI”)]  when  the 
Commonwealth  failed  to  prove  beyond  a  reasonable  doubt  that 
[Appellant] engaged in sexual intercourse through force or threat 
of force[.] 

6. Whether  the evidence was sufficient to convict  [Appellant] of 
Rape  when  the  Commonwealth  failed  to  prove  beyond  a 
reasonable doubt that [Appellant] engaged in sexual intercourse 
through force or threat of force[.] 

7. Whether  the evidence was sufficient to convict  [Appellant]  of 
Strangulation when the Commonwealth failed to prove beyond a 
reasonable  doubt  that  it  was  [Appellant]’s  conscious  object  or 
purpose to restrict the breathing or the circulation of the blood of 
[V]ictim[.] 

8. Whether  the evidence was sufficient to convict  [Appellant] of 
Aggravated  Assault  with  a  Deadly  Weapon  when 
the 
Commonwealth  failed  to  prove  beyond  a  reasonable  doubt  that 
[Appellant] used a device or instrumentality calculated or likely to 
produce death or serious bodily injury[.]  

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quashal,  which  served  to  terminate  the  direct  appeal  process,  and  the 
breakdown in the administrative process that led to that quashal, we opt to 
treat Appellant’s post-sentence motion based on after-discovered evidence as 
if it were filed during the post-sentence motion period.   

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9.  Whether  the  [t]rial  [c]ourt  erred  in  sentencing  [Appellant]  to 
consecutive sentences for Rape and [IDSI] when these two counts 
should have merged for sentencing purposes[.] 

imposition  of  consecutive 
10.Whether  the  [t]rial  [c]ourt’s 
aggravated range sentences, rather than concurrent sentences[,] 
is  unduly  harsh,  considering  the  nature  of  the  crimes  and  the 
length of imprisonment[.]  

Appellant’s Brief at 4-6. 

Appellant’s first claim involves Victim’s guilty plea on May 27, 2021, to 

two cases that were outstanding at the time of Appellant’s trial.  The jury was 

informed that Victim was facing criminal charges.  The Commonwealth asked, 

“Have you been, I guess, promised anything or paid at all for your testimony 

here?”  Victim replied, “No.”  N.T., 4/25/21, at 70.  Appellant filed the post-

sentence motion after obtaining Victim’s plea transcript.  The transcript shows 

that the Commonwealth, represented by the same assistant district attorney 

who prosecuted Appellant, amended Victim’s felony criminal trespass charge 

to  a  misdemeanor  theft,  and  amended  a  felony  escape  charge  to  a 

misdemeanor disorderly conduct.   Appellant sought a new trial on the basis 

that  the  Commonwealth  must  have  agreed  to  the  reduced  charges  in 

exchange  for  Victim’s  testimony  against  Appellant.    Appellant  cited  the 

prosecutor’s statement at the plea that Victim was cooperative and provided 

testimony  against  Appellant.    The  Commonwealth  filed  a  response  to  the 

motion,  arguing  that  her  testimony  was  only  a  factor  in  the  plea  bargain.  

Appellant maintains that he is entitled to a new trial. 

Exculpatory evidence favorable to the accused is not confined to 
evidence  that  reflects  upon  the  culpability  of  the  defendant.  
Exculpatory evidence also includes evidence of an impeachment 

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nature that is material to the case against the accused.  Napue 
v. Illinois, 360 U.S. 264 … (1959).  As the court in Napue sagely 
observed: “[t]he jury’s estimate of the truthfulness and reliability 
of a given witness may well be determinative of guilt or innocence, 
and it is upon such subtle factors as the possible interest of the 
witness in testifying that a defendant’s life or liberty may depend.”  
Id. at 269[.]  Any implication, promise or understanding that the 
government would extend leniency in exchange for a witness’[s] 
testimony is relevant to the witness’[s] credibility.  United States 
v.  Giglio,  405  U.S.  150  …  (1972)….    [W]hen  the  failure  of  the 
prosecution  to  produce  material  evidence  raises  a  reasonable 
probability that the result of the trial would have been different if 
the evidence had been produced, due process has been violated 
and a new trial is warranted.  United States v. Bagley, 473 U.S. 
667 … (1985). 

Commonwealth v. Strong, 761 A.2d 1167, 1171 (Pa. 2000). 

The trial court did not hold a hearing on the matter.  Instead, the court 

concluded that Appellant failed to establish that a plea agreement existed, as 

the Commonwealth’s response cited several explanations for the plea which 

the  trial  court  credited.    The  trial  court  declined  to  determine  whether 

Appellant would be entitled to a new trial if a plea deal existed, but expressed 

skepticism based on the overwhelming evidence of guilt.  

The Commonwealth continues to maintain that there was no plea deal.  

The  Commonwealth  also  states,  “Because  the  trial  court  denied  Appellant’s 

post-sentence  motions  without  a  hearing,  the  Commonwealth  did  not  have 

the  opportunity  to  create  a  record  detailing  the  process  it  underwent  when 

crafting  the  plea  agreement  in  [Victim]’s  criminal  case.”    Commonwealth’s 

Brief at 9.   The Commonwealth cites the witnesses and facts  it would have 

introduced at a hearing, all of which it submits would have established that 

there  was  no  plea  agreement  made  in  exchange  for  Victim’s  testimony.  

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Alternatively, the Commonwealth argues that “any such error was harmless 

because there is no reasonable probability that had the jury been made aware 

of  the  plea  agreement  between  Victim  and  the  Commonwealth,  that  the 

outcome  of  the  trial  would  have  been  different.”    Id.  at  10.    Still,  the 

Commonwealth “concedes that a remand for the limited purposes of holding 

an evidentiary hearing to establish a record … may be necessary.”  Id. at 11.   

We accept the Commonwealth’s willingness to place these matters on 

the  record.    While  we  agree  that  the  evidence  of  guilt  appears  to  be 

overwhelming,  we  recognize  that  prosecutors  “have  a  unique  role  in  our 

criminal  justice  system.”    See  Commonwealth  v.  Chmiel,  173  A.3d  617, 

631 (Pa. 2017) (Donohue, J., concurring).  The Commonwealth is required to 

seek justice, not win cases.  Id.  We are not inclined to simply conclude that 

any  such  deal,  if  it  existed,  was  ultimately  irrelevant.    Indeed,  the 

Commonwealth concedes that a limited remand is warranted.  We therefore 

find  that  the  trial  court  abused  its  discretion  in  concluding  that  no  plea 

agreement existed without sufficient record support.   

Accordingly, we shall vacate the judgment of sentence and remand for 

the  limited  purpose  of  an  evidentiary  hearing  on  this  issue.    If  the  court 

concludes  after  this  hearing  that  Appellant  has  failed  to  establish  that  an 

agreement was in place at the time of trial for a plea bargain in exchange for 

Victim’s  testimony,  or  it  concludes  that  Appellant  cannot  establish  a 

reasonable probability that the outcome of trial would have been different if 

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sentence.   

any such agreement existed, then the court shall reimpose the judgment of 

Because the court is instructed to reinstate the judgment of sentence if 

it concludes that Appellant is not entitled to a new trial following an evidentiary 

hearing, we now address Appellant’s remaining claims.4  Appellant’s second 

and third issues both involve the search warrant for his residence. 

[O]ur standard of review in addressing a challenge to a trial court’s 
denial of a suppression motion is limited to determining whether 
the factual findings are supported by the record and whether the 
legal  conclusions  drawn  from  those  facts  are  correct.    We  are 
bound by the suppression court’s factual findings so long as they 
are supported by the record; our standard of review on questions 
of law is de novo.  Where, as here, the defendant is appealing the 
ruling of the suppression court, we may consider only the evidence 
of the Commonwealth and so much of the evidence for the defense 
as remains uncontradicted.   Our  scope of review of suppression 
rulings includes only the suppression hearing record and excludes 
evidence elicited at trial. 

Commonwealth  v.  Yandamuri,  159  A.3d  503,  516  (Pa.  2017)  (citations 

omitted). 

Appellant  first  attacks  the  sufficiency  of  the  description  in  the  search 

warrant regarding the place to be searched.  The search warrant authorized a 

search of the following premises: 

321 Lincoln Way West, second floor apartment is the target of the 
search.    321  Lincoln  Way  West  is  attached  to  319  Lincoln  Way 
West.  321 Lincoln Way West is a brick house with a first floor and 
second  floor  apartment.    321  Lincoln  Way  West  has  white  trim 
windows.  The entry into the second floor apartment is on the west 

____________________________________________ 

4 Additionally, Appellant would be entitled to discharge if the evidence were 
insufficient to convict, thus eliminating the possibility of a new trial on some 
or all of the counts.   

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side  of  the  building  with  a  set  of  stones  stairs  that  leads  to  a 
landing/ porch.  The landing has [a] white railing and white posts.  

Appellant’s Brief at 12 (citation omitted). 

 

Appellant  argues  that  the  “Commonwealth  searched  the  wrong 

property.”    Id.  at  13.    Appellant  appears  to  claim  that  the  Commonwealth 

searched the “wrong” property in that 321 Lincoln Way West does not really 

exist.    The  basis  for  that  assertion  is  the  rental  agent’s  description  for  the 

second-floor apartment, which described it as 321½ Lincoln Way West.  “The 

police officer … referenced in his testimony that he knew that the agent that 

rented the property specifically referred to the property by a different address, 

321½  Lincoln  Way  West,  not  321  Lincoln  Way  West,  Second  Floor.”    Id.  

Appellant states that the officer “was quite aware of the discrepancy” and was 

thus required to “specifically reference both addresses.”  Id.    

We  disagree.    “[T]he  Supreme  Court  has  held  a  ‘practical,  common-

sense’  approach  should  be  taken  in  determining  whether  the  place  to  be 

searched is specified with sufficient particularity.”  Commonwealth v. Irvin, 

134  A.3d  67,  73  (Pa.  Super.  2016).    Where  the  structure  contains  multiple 

living units, it generally suffices that the warrant singles out a particular unit.  

See  In  Int.  of  Wilks,  613  A.2d  577,  579  (Pa.  Super.  1992)  (“A  search 

warrant  directed  against  an  apartment  house,  or  other  multiple-occupancy 

structure  will  be  held  invalid  for  lack  of  specificity  if  it  fails  to  describe  the 

particular  room  or  subunit  to  be  searched  with  sufficient  definiteness  to 

preclude a search of other units.”).  Detective Todd Harden, who testified at 

the evidentiary hearing, verified Appellant’s address through the Borough of 

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Chambersburg’s utility service records and used that address on the warrant 

application.    That  address,  in  combination  with  the  description,  which 

specifically referenced the stairs leading to the porch of the subunit, leaves no 

doubt that the second-floor apartment was to be searched to the exclusion of 

the first-floor apartment.   

Even  if  we  accepted  that  how  the  rental  agent  chose  to  describe  the 

building  was  relevant,  it  is  not  clear  what  the  “½”  designation  referred  to.  

Appellant  offers  no  support  for  the  proposition  that  a  search  warrant  must 

include  all  possible  designations.    Moreover,  using  the  rental  agent’s 

description  would  itself  cause  confusion.    If  the  ½  simply  conveys  that  the 

two-unit structure was split into equal halves, then specifying “321½ Lincoln 

Way West” would probably invalidate the search warrant under the foregoing 

principle as it would be unclear which half was the target of the search.  No 

relief is due.  

 

Appellant’s  third  issue  relates  to  items  that  were  seized  outside  the 

scope of the warrant.  The search warrant authorized the officers to seize the 

following  items: a  wooden baseball bat, dining style four prong fork, blood, 

and  Victim’s  cut  hair.    The  receipt  of  the  items  that  the  authorities  seized 

included a pair of Nike Zoom shoes, a silver butter knife, a silver blade knife 

with a black handle, and a cotton swab that officers used to collect suspected 

semen.  Appellant argues that these items do not fall within any of the items 

referenced in the warrant and that no exception to the warrant requirement 

applies.   The Commonwealth agrees that the knives and semen sample are 

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not within the scope of the warrant but submits that these items were lawfully 

seized  pursuant  to  the  plain  view  exception.    As  to  the  shoes,  the 

Commonwealth  argues  that  the  seizure  was  justified  to  test  the  shoes  for 

blood, which was an item listed on the warrant. 

 

Beginning with the shoes, we agree that the suspected presence of blood 

on  the  shoes  justified  their  seizure.    The  warrant  authorized  the  seizure  of 

blood,  and  thus  the  authorities  could  seize  items  with  suspected  blood  for 

further  testing.    The  search  team  found  dried  blood  in  numerous  places 

throughout  the  apartment,  including  on  the  shoes.    Thus,  the  shoes,  which 

contained the blood, were lawfully seized.   

 

As to the remaining items, we agree that the officers properly seized the 

items under the plain view exception to the warrant requirement:   

This doctrine permits a valid warrantless seizure of an item where: 
(1) the police have not violated the Fourth Amendment in arriving 
at the location from which the item could be viewed; (2) the item 
is  in  plain  view;  (3)  the  incriminating  character  of  the  item  is 
immediately  apparent;  and  (4)  the  police  have  a  lawful  right  of 
access  to  the  item  itself.    Horton  v.  California,  496  U.S.  128, 
133 … (1990). 

Commonwealth v. Jones, 988 A.2d 649, 656 (Pa. 2010) (footnote and some 

citations omitted). 

There is no question that the first prong is met as the police searched 

the  home  pursuant  to  a  valid  search  warrant.    As  to  the  second,  Appellant 

does not claim that the items were not in plain view.  His argument centers 

on the remaining two prongs.  See Appellant’s Brief at 10 (“Additionally[,] the 

incriminating character of the items must be readily apparent, which is lacking 

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in this case.  Clearly there were no exigent circumstances as law enforcement 

had secured the premises to conduct the search.”).  

We  disagree.    Beginning  with  the  third  prong,  the  incriminating 

character of the items was readily apparent to the investigating officers based 

on their evidentiary value.  At the evidentiary hearing on Appellant’s motion 

to  suppress,  the  Commonwealth  asked  Detective  Harden,  “Item  number  4, 

silver colored butter knife.  Why … was that item seized?”  N.T. Suppression, 

1/3/19,  at  16-17.    Detective  Harden  replied,  “During  the  interview  with 

[Victim], she explained that [Appellant] attempted to utilize a butter knife for 

cutting her hair before [Appellant] used a black handled knife from the kitchen 

to actually cut her hair.”  Id. at 17.  Detective Harden stated that he seized 

the  items  for  their  evidentiary  value.    Id.    As  to  the  lawful  right  of  access, 

under  these  facts  the  warrant’s  authorization  to  search  supplied  the  lawful 

right of access.  

The Horton case, cited by Jones, supra, is instructive on these points.  

There, police were investigating an armed robbery and established probable 

cause to search Horton’s home for weapons used by the perpetrators as well 

as  proceeds  from  the  robbery.    The  magistrate  authorized  a  search  for  the 

proceeds, albeit limited to three specifically described rings.  The magistrate 

did not authorize a search for weapons.   

Officers  searched  Horton’s  home  but  did  not  find  the  stolen  property.  

While  searching  for  the  rings,  an  officer  discovered,  in  plain  view,  several 

firearms.  The officer conceded in his testimony that, while searching for the 

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rings,  he  was  interested  in  finding  other  items  connecting  Horton  to  the 

robberies.  The Horton Court rejected the notion that the plain view exception 

only applies when the authorities inadvertently come across the items.  The 

Court’s  reasons  for  rejecting  that  theory  are  relevant  to  our  analysis  of 

Appellant’s  claim.    Specifically,  Detective  Harden  testified  that  he  knew  the 

knives were incriminating because of what Victim told him about the attacks.  

Yet, the search warrant, while listing Victim’s hair as an object of the search, 

did  not,  for  whatever  reason,  list  the  items  used  to  cut  Victim’s  hair.    The 

Horton Court addressed this scenario:  

The fact that an officer is interested in an item of evidence and 
fully  expects  to  find  it  in  the  course  of  a  search  should  not 
invalidate its seizure if the search is confined in area and duration 
by  the  terms  of  a  warrant  or  a  valid  exception  to  the  warrant 
requirement.  If the officer has knowledge approaching certainty 
that the item will be found, we see no reason why he or she would 
deliberately omit a particular description of the item to be seized 
from  the  application  for  a  search  warrant.    Specification  of  the 
additional item could only permit the officer to expand the scope 
of the search.  On the other hand, if he or she has a valid warrant 
to  search  for  one  item  and  merely  a  suspicion  concerning  the 
second, whether or not it amounts to probable cause, we fail to 
see  why  that  suspicion  should  immunize  the  second  item  from 
seizure  if  it  is  found  during  a  lawful  search  for  the  first.    The 
hypothetical  case  put  by  Justice  W[hite]  in  his  concurring  and 
dissenting  opinion  in  Coolidge  v.  New  Hampshire,  403  U.S. 
443, 516 (1971), is instructive: 

“Let us suppose officers secure a warrant to search a house 
for  a  rifle.    While  staying  well  within  the  range  of  a  rifle 
search, they discover two photographs of the murder victim, 
both  in  plain  sight  in  the  bedroom.    Assume  also  that  the 
discovery of the one photograph was inadvertent but finding 
the  other  was  anticipated.    The  Court  would  permit  the 
seizure of only one of the photographs.  But in terms of the 
‘minor’ peril to Fourth Amendment values there is surely no 

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difference between these two photographs: the interference 
with possession is the same in each case and the officers’ 
appraisal of the photograph they expected to see is no less 
reliable than their judgment about the other.  And in both 
situations the actual inconvenience and danger to evidence 
remain  identical  if  the  officers  must  depart  and  secure  a 
warrant.”   

Id.[] at 516. 

Horton, 496 U.S. at 138-39.  

That hypothetical largely applies to these facts.  The officers presumably 

expected, or at least suspected, that they would find the knives.  However, 

Appellant does not argue that the officers’ authority to search the premises 

was terminated prior to finding the knives and suspected semen.  As stated in 

Horton:   

Id. at 141. 

In  this  case,  the  scope  of  the  search  was  not  enlarged  in  the 
slightest by the omission of any reference to the weapons in the 
warrant.  Indeed, if the three rings and other items named in the 
warrant had been found at the outset—or if petitioner had them 
in his possession and had responded to the warrant by producing 
them immediately—no search for weapons could have taken place. 

The same is true here.  Thus, whether the authorities mistakenly failed 

to request to search for the knives and semen, or believed that they did not 

have probable cause that those items would be found in the home, the point 

remains that the officers observed the recovered items in plain view during a 

search for items they were authorized to recover.  Accordingly, the scope of 

this search was not broadened by the failure to include the knives and semen 

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Detective Harden.5  

in  the  warrant,  and  their  evidentiary  nature  was  immediately  apparent  to 

 

Appellant’s fourth issue concerns the admission of hearsay statements 

relayed by Victim to a nurse.  Victim was examined by Nancy Bates, a sexual 

assault nurse examiner.  During Nurse Bates’ testimony, she referenced the 

following conversation with Victim. 

[Victim] said that she was homeless[,] and she was an addict and 
that she had been living with [Appellant]. 

[Victim] said that she was in the home[,] and [Appellant] left to 
talk with someone by the name of Theresa McGinley[,] and that 
Ms. McGinley told [Appellant] that [Victim] had had sex with her 
brother [sic]….  [Victim] said that [Appellant] had told her in the 
past that he would kill her if she messed with his brothers.   

After talking with Ms. McGinley, [Appellant] returned to the house 
where … [V]ictim was and beat her up.  She said that she was … 
beaten with a bat and hit in the head, arms, legs, and she thought 
maybe her ribs. 

She  also  reported  being  stabbed  and  scraped  with  a  fork  and  a 
butter knife[,] and she had multiple puncture wounds that were 
visible.  She also had abrasions on her face, arm, and legs[,] and 
she said that she had been living with [Appellant] since December 
2017…. 

She states that [Appellant] would withhold drugs from her if she 
didn’t do what he wanted her to do[,] and she stated that’s she 
[sic] really afraid of what he will do.  She stated that [Appellant] 
had threatened to harm her sister and her mother if she didn’t do 
what he wanted her to do.  

N.T., 4/5/2021, at 141-42.   

____________________________________________ 

5 We note that the Pennsylvania Constitution rejects the “good faith” exception 
to the exclusionary rule.  Plain view, however, is an exception to the warrant 
requirement and does not involve the exclusionary rule.   

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Appellant  submits  that  this  evidence  was  not  admissible  under  any 

hearsay exception and therefore we must assess whether its admission was 

harmless.  The Commonwealth does not address whether the evidence was 

properly  admitted  and/or  whether  it  was  harmless.    The  Commonwealth 

instead maintains that Appellant failed to preserve this issue. 

 

We agree with the Commonwealth.  The challenged testimony contains 

hearsay, double hearsay, and triple hearsay.  The first level of hearsay is the 

statements by Victim to Nurse Bates.  The double hearsay  consists of what 

Ms. McGinley told Victim, which was then related by Victim to Nurse Bates at 

the first level of hearsay.  The third level of hearsay consists of what Appellant 

told Ms. McGinley, which in turn was related to Victim and up the chain through 

the  levels  of  hearsay  as  described.    While  Appellant’s  statements  to  Ms. 

McGinley  would  be  admissible  as  an  admission  had  Ms.  McGinley  testified, 

Appellant  is  correct  that  the  statements  of  Ms.  McGinley  relating  those 

admissions to Victim (and consequently the Victim’s relating that hearsay to 

Nurse Bates) must be separately admissible.     

Turning  to issue preservation,  Appellant lodged an  objected  when the 

Commonwealth asked Nurse Bates, “And what did [Victim] tell you occurred?”  

The Commonwealth responded, “I believe this is a statement for purposes of 

medical treatment or diagnosis that has comes [sic] into direct contradiction 

by [Appellant].  They have brought this up by witnesses on the witness stand.”  

N.T.,  4/5/21,  at  139.    Appellant  replied  that  he  was  not  sure  what  the 

prosecution  was  referencing.    The  Commonwealth  stated,  “[Appellant] 

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indicated  with  regard  to  whether  or  not  [Victim]  had  used  controlled 

substances  on  the  date  that  she  reported[,]  and  he  cited  to  the  medical 

records indicating as such.   [T]hese are statements for purposes of medical 

treatment and diagnosis.  They are admissible on that basis alone.”   Id. at 

139-40.  The trial court overruled the objection. 

We agree with the trial court and Commonwealth that the objection was 

properly overruled at the outset, as the prosecution indicated that Nurse Bates 

would  provide  answers  relevant  to  the  hearsay  exception  for  medical 

treatment and diagnosis.  Our Supreme Court has explained the rationale for 

this exception, as well as its limits, as follows: 

The common law traditionally excluded statements to physicians 
as  to  the  cause  of  an  injury  (in  contrast  to  statements  of 
symptoms  and  sensations)  from  coming  in  as  substantive 
evidence.  See Joseph, Evidence in America, Rule 803 at p. 57 
(1994)(“Statements  of  cause  were  excluded  as  inherently 
unreliable.”).  See, e.g., Cody v. S.K.F., … 291 A.2d [772,] 776 
(Pa. 1972) (“statements which related to the cause of the injury 
were not admissible unless they were part of the res gestae [i.e., 
excited  utterance].”)    Prior  to  Cody,  testimony  repeating 
statements made by patients concerning the cause of the injury 
were  not  admissible  as  substantive  evidence.    However,  Cody 
expanded  the  law  and  permitted  such  testimony  regarding  the 
cause  of  the  injury. 
  The  law  was  again  extended  in 
Commonwealth  v.  Blackwell,  …  494  A.2d  426  (Pa.  Super. 
1985), to include testimony repeating statements made to nurses 
for the purposes of medical treatment and diagnosis. 

The  second  requirement  for  a  statement  to  come  within  the 
medical treatment exception is that the statement be pertinent to 
medical treatment.  By way of example, a person’s statement, “I 
was  hit  by  a  car,”  made  for  the  purpose  of  receiving  medical 
treatment  would  come  within  the  exception.    It  is  important  for 
doctors to know how the person sustained the injuries.  However, 
a person’s statement, “I was  hit by  the car which went through 

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the  red  light,”  would  not  come  within  the  exception,  or  at  least 
that  part  of  the  statement  which  indicated  that  the  car  “went 
through  the  red  light”  would  not.    It  is  inconsequential  and 
irrelevant to medical treatment to know that the car went through 
the red light.   

Commonwealth  v.  Smith,  681  A.2d  1288,  1291–92  (Pa.  1996)  (some 

citations omitted). 

The trial court concluded that many of the statements plainly exceeded 

the medical treatment exception but opined that Appellant’s claim was waived 

due  to  the  failure  to  object  once  Nurse  Bates’  testimony  went  afield  of  the 

medical treatment exception.  We agree.  Appellant was required to make a 

further objection once Nurse Bates’ testimony strayed from the bounds of the 

medical  treatment  exception.    We  therefore  find  that  the  issue  has  been 

waived. 

 

Appellant’s  fifth,  sixth,  seventh,  and  eighth  issues  all  concern  the 

sufficiency  of  the  evidence  to  convict.    The  legal  principles  applicable  to  all 

four issues are identical:   

Whether  sufficient  evidence  exists  to  support  the  verdict  is  a 
question of law; our standard of review is de novo and our scope 
of  review  is  plenary.    We  review  the  evidence  in  the  light  most 
favorable  to  the  verdict  winner  to  determine  whether  there  is 
sufficient evidence to allow the [fact-finder] to find every element 
of a crime beyond a reasonable doubt. 

Commonwealth v. Tejada, 107 A.3d 788, 792 (Pa. Super. 2015) (citations 

and quotation marks omitted).  As this case centers on the credibility of Victim, 

we  add  that  “It  is  well-established  that  a  victim’s  testimony  alone  can  be 

sufficient to sustain a conviction.”  Commonwealth v. Johnson, 180 A.3d 

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474, 479 (Pa. Super. 2018).  “[A] solitary witness’s testimony may establish 

every element of a crime, assuming that it speaks to each element, directly 

and/or by rational inference.”  Id. (italics omitted). 

 

Appellant  argues  his  fifth  issue,  concerning  his  conviction  for  IDSI, 

together with his sixth issue, concerning his conviction for rape, as both crimes 

involve  the  common  element  of  “forcible  compulsion.”    Regarding  IDSI, 

Appellant was charged with violating 18 Pa.C.S. § 3123(a)(1), which applies 

to “engag[ing] in deviate sexual intercourse with a complainant … by forcible 

compulsion.”    Appellant  does  not  assail  the  deviate  sexual  intercourse 

component  and  instead  focuses  on  a  purported  absence  of  forcible 

compulsion.  As to rape, Appellant was charged with one count of violating 18 

Pa.C.S. § 3123(a)(1), which prohibits “sexual intercourse with a complainant 

… [b]y forcible compulsion.”  Appellant argues that the evidence for “forcible 

compulsion”  is  lacking,  as  Victim  testified,  “I  don’t  know  if  I  used  the  word 

[‘]no[’] but he knew that I didn’t want to.”  Appellant’s Brief at 20 (quoting 

N.T., 4/5/21, at 104).  Additionally, Victim testified that Appellant knew she 

would not want to have sex because “she didn’t make advances toward him,” 

id.  (quoting  N.T.,  4/25/21,  at  121),  and  thus  only  her  demeanor  conveyed 

that  she  did  not  wish  to  have  sex.    Moreover,  the  two  had  a  “friends  with 

benefits” relationship and had consensual sex before the abuse commenced.  

According to Appellant, “[a]t best there may have been a mere showing of a 

lack  of  consent,  which  is  insufficient  to  sustain  the  element  of  forcible 

compulsion.”  Id. at 21.   

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In  assessing  whether  “forcible  compulsion”  exists,  fact-finders  are 

entitled 

to  consider 

the  context  surrounding 

the  encounter. 

  In 

Commonwealth v. Fears, 836 A.2d 52 (Pa. 2003), the appellant argued that 

there was no factual basis for his plea to IDSI as forcible compulsion was not 

established.    The  appellant  argued  that  the  prosecutor’s  factual  summary 

established only that the victim “did not respond to this particular act [the oral 

sodomy]  with  resistance.”    Id.  at  66  bracketing  in  original).6    As  such,  the 

appellant  claimed  that  there  was  no  factual  basis  to  support  forcible 

compulsion.   

 

Our Supreme Court disagreed, relying in large part on Commonwealth 

v.  Rhodes,  510  A.2d  1217  (Pa.  1986),  which  examined  the  sufficiency  of 

evidence to support the element of forcible compulsion where a twenty-year-

old defendant performed sexual acts on an eight-year-old girl after luring her 

into a building and instructing her to lie on the ground.  The Superior Court 

had reversed the rape conviction on the basis that no force was used.  The 

Rhodes  Court  reversed,  explaining  that  “forcible  compulsion”  includes  “not 

only  physical  force  or  violence  but  also  moral,  psychological,  or  intellectual 

force used to compel a person to engage in sexual  intercourse against that 

person’s will.”  Id. at 1226.   The Rhodes scenario was inherently one that 

would  prevent  resistance  because  the  child  was  younger,  smaller,  and  less 

____________________________________________ 

6 As the Fears Court noted in a footnote, the Commonwealth proceeded on a 
Section 3123(a)(1) charge even though the victim was under thirteen years 
of age.   

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mature.    “In  such  cases,  forcible  compulsion  or  the  threat  of  forcible 

compulsion derives from the respective capacities of the child and the adult … 

without the use of physical force or violence or the explicit threat of physical 

force or violence.”  Id. at 1227.  The same was true in Fears, as the appellant 

confessed to telling his twelve-year-old victim to “stand up and [Fears] pulled 

down his underwear and started to have oral sex with him.”  Fears, 836 A.2d 

at 66-67 (quoting plea transcript).  The incident took place “[at] dusk[,] and 

[Fears] and the victim were in a secluded river location.”  Id. at 67.   

 

The logic of Rhodes and Fears applies here.  A rational fact-finder could 

conclude that Victim could either submit to Appellant’s sexual demands or risk 

further violence.  The context of Appellant’s crime demonstrates that “no” was 

an unacceptable answer.  The first attack began when Appellant confronted 

Victim about having sex with Appellant’s brother.  He brutally attacked her, 

causing  her  to  bleed  on  multiple  surfaces  within  the  apartment.    He  forced 

Victim  to  take  a  shower  and  shortly  thereafter  began  striking  her  with  the 

wooden bat.  Appellant put  Vaseline on the bat and ordered her to insert it 

into her rectum.  This evidence is plainly sufficient to conclude that the Victim, 

who  was  isolated  from  the  outside  world,  had  the  choice  of  complying  with 

Appellant’s demands or risk further beatings.   The same is true of the later 

rape, when Appellant inserted his penis into Victim’s vagina.   

The seventh issue asks whether the Commonwealth presented sufficient 

evidence to sustain strangulation.  Pursuant to 18 Pa.C.S. § 2718(a), to be 

found  guilty  of  strangulation,  the  Commonwealth  must  establish  that  the 

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person “knowingly or intentionally impedes the breathing or circulation of the 

blood of another by person by … applying pressure to the throat or neck[.]”  

18 Pa.C.S. § 2718(a)(1). 

 

We conclude that the Commonwealth presented sufficient evidence to 

support  strangulation.    It  is  axiomatic  that  “intent  may  be  established  by 

circumstantial  evidence  since  there  is  rarely  any  direct  evidence  of  one’s 

subjective state of mind.”  Commonwealth v. Utter, 421 A.2d 339, 341 (Pa. 

Super. 1980).  The jury was entitled to rationally infer that Appellant’s conduct 

was designed to impede Victim’s breathing.  Victim testified that she was on 

her  back  after  Appellant  attacked  her  with  the  fork  and  knife.    Afterwards, 

Appellant “put his foot on my throat and applied enough pleasure [sic] so I 

couldn’t  breathe.”    N.T.,  4/5/21,  at  56.    Appellant  applied  enough  pressure 

that Victim said she felt like she would pass out and ended up urinating on 

herself.  Id. at 57.  The circumstantial evidence suffices to justify the inference 

that Appellant’s intent in applying pressure to Victim’s throat was to impede 

her breathing. 

 

Appellant’s  argument  to  the  contrary  rests  on  his  cross-examination, 

wherein Victim agreed that “it might have been hands and feet” that Appellant 

used to strangle Victim, whereas in earlier testimony at a bail hearing and in 

police interviews, she  did not  mention his feet.   N.T., 4/5/21,  at 113.  See 

Appellant’s  Brief  at  22  (arguing  that  if  “[Victim]  herself  was  unsure  of 

Appellant’s actions, she could not be sure of his intentions.  [V]ictim testified 

throughout  trial  that  she  was  a  regular  user  of  drugs  and  was  under  the 

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influence during this event.”).  At most, Victim’s testimony created a credibility 

issue, which the jury was entitled to resolve as they saw fit.  Commonwealth 

v. Cahill, 95 A.3d 298, 300 (Pa. Super. 2014) (“Finally, the [fact-finder,] while 

passing upon the credibility of the witnesses and the weight of the evidence 

produced, is free to believe all, part] or none of the evidence.”) (bracketing in 

original). 

 

Appellant argues in his eighth claim that the conviction for aggravated 

assault with a deadly weapon must be discharged.  The statutory language for 

that crime states, “A person is guilty of aggravated assault if he … attempts 

to cause or intentionally or knowingly causes bodily injury to another with a 

deadly  weapon.”    18  Pa.C.S.  §  2702(a)(4).    “Deadly  weapon”  is  defined  to 

include, inter alia, any “device designed as a weapon and capable of producing 

death or serious bodily injury, or any other device or instrumentality which, 

in the manner in which it is used or intended to be used, is calculated or likely 

to produce death or serious bodily injury.”  18 Pa.C.S. § 2301. 

 

Appellant argues that the Commonwealth failed to establish he used a 

deadly weapon as “the record is devoid of any evidence that [V]ictim suffered 

bodily injury due to the use of a weapon.”  Appellant’s Brief at 23.  The trial 

court opinion aptly explains why Appellant’s argument fails: 

Although  the  wooden  bat  is  no  Louisville  Slugger,  it  is 
unquestionably  capable  of  producing  death  or  serious  bodily 
injury.  Measuring just under two feet in length, the wooden bat 
would make a  sturdy weapon  much akin to a fireplace poker or 
tire iron – items that easily lend themselves to being weapons if 
the  wielder  chose  to  use  them  as  such.    That  is  how  Appellant 
used  the  wooden  bat,  striking  [V]ictim  repeatedly  leaving  welts 

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and bruises all over her back and causing bleeding on the brain.  
Under 
the 
legal  standard,  we 
Commonwealth presented sufficient evidence[.] 

the  applicable 

that 

find 

TCO at 16-17.  We fully agree.  Appellant’s claim fails. 

Appellant’s  final  issue  challenges  the  discretionary  aspects  of  his 

sentence.7  These appeals are not as of right and an appellant must satisfy a 

four-part test  to invoke our jurisdiction.  Commonwealth v. Buterbaugh, 

91 A.3d 1247, 1265 (Pa. Super. 2014). 

An  appellant  has  sufficiently  complied  with  the  four-part  test 
when: 

(1) the appellant preserved the issue either by raising it at 
the time of sentencing or in a post[-]sentence motion; (2) 
the  appellant  filed  a  timely  notice  of  appeal;  (3)  the 
appellant  set  forth  a  concise  statement  of  reasons  relied 
upon  for  the  allowance  of  appeal  pursuant  to  Pa.R.A.P. 
2119(f); and (4) the appellant raises a substantial question 
for our review. 

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) 
(citation omitted).  To present a substantial question, an appellant 
must set “forth a plausible argument that the sentence violates a 
provision of the sentencing code or is contrary to the fundamental 
norms of the sentencing process.”   Commonwealth v. Dodge, 
77 A.3d 1263, 1268 (Pa. Super. 2013) (citations omitted). 

Commonwealth v. Fuentes, 272 A.3d 511, 519–20 (Pa. Super. 2022). 

Appellant satisfied the first, second, and third conditions.  However, we 

find that Appellant has failed to establish a substantial question.  Appellant’s 

____________________________________________ 

7  Appellant  has  abandoned  his  ninth  issue,  which  asked  whether  the 
convictions  for  rape  and  IDSI  merge.    He  concludes  that,  under  the 
circumstances,  they  do  not.    As  this  issue  relates  to  the  legality  of  his 
sentence, we add that we agree with the trial court that the sentences do not 
merge because the crimes arise from distinct acts.   

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9711(c)). 

statement merely states: “The imposition of consecutive sentences … is, on 

its  face,  so  disproportionate  as  to  implicate  the  ‘fundamental  norms  which 

underlie the sentencing process.’” Appellant’s Brief at 24 (citing 42 Pa.C.S. § 

This is a wholly conclusory statement that does not set forth any type 

of  plausible  argument  that  the  sentence  violated  the  fundamental  norms  of 

the sentencing process.  Appellant’s complaint is merely that the consecutive 

sentences are unwarranted under the circumstances of the case.  We disagree.  

Appellant forced Victim to sodomize herself with a wooden bat, raped her, and 

beat  her  so  severely  that  a  CAT  scan  showed  signs  of  bleeding  on  Victim’s 

brain.  The aggregate sentence is lengthy, but by no means unduly harsh in 

light of the horrific abuse Appellant inflicted upon Victim. 

Had Appellant set forth a plausible argument to warrant merits review, 

we  would  discern  no  abuse  of  discretion.    Appellant  merely  relitigates  his 

complaints  that  Victim’s  testimony  was  insufficient.    He  argues  that  the 

sentence is excessive “considering Appellant’s age and the facts of this case.  

Appellant is 41 years of age.  The parties were in a sexual relationship, [and] 

even  if  Appellant  assaulted  [V]ictim,  there  was  no  evidence  presented  that 

Appellant forced [V]ictim to later engage in sex.”  Appellant’s Brief at 25.  To 

the  contrary,  the  evidence  when  viewed  in  the  light  most  favorable  to  the 

Commonwealth, amply demonstrates that Appellant not only forced Victim to 

engage in sexual acts, he also brutally assaulted her over several days.   

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J-S39028-22 

Appellant’s  additional  claim  that  the  court  failed  to  consider  his 

rehabilitative needs fails to account for the countervailing facts, which the trial 

court was required to consider in fashioning a proper sentence.  As the trial 

court  stated  at  sentencing,  Appellant  had  been  released  from  incarceration 

three days before his attacks on Victim began.  N.T. Sentencing, 6/30/21, at 

25.    The  court  also  cited  Appellant’s  comments  at  sentencing  that  his  own 

mother had been addicted to drugs.  Referencing Victim, Appellant stated, “At 

no point do I want to harm anyone or take advantage of someone who was 

exactly like my mom, but if that’s the way she feels and whatever reason she 

needed to do this, I understand and, you know, I wish you the best life.”  Id. 

at 22-23.  The court quite reasonably concluded that Appellant was “blaming 

her.    It’s  like  she’s  doing  this  to  you  when  you  are  the  one  that  did  these 

things to her.”  Id. at 27.  Considering Appellant’s lack of remorse, his blaming 

Victim,  the  severity  of  these  crimes,  and  the  fact  that  Appellant  committed 

these crimes almost immediately after being released from incarceration, it is 

hardly surprising that the trial court determined that a lengthy sentence was 

needed.  We would observe no abuse of discretion in this sentence.   

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Judgment of sentence vacated.  Case remanded with instructions to hold 

evidentiary  hearing  consistent  with  this  memorandum. 

  Jurisdiction 

President Judge Panella joins this Memorandum. 

Judge Nichols concurs in the result. 

J-S39028-22 

relinquished.   

udgment Entered. 

oseph D. Seletyn, Esq. 
Prothonotary 

ate: 3/21/2023 

  J

    J

  D

 

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