J-A15025-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

ROBERT EMANUEL JACKSON, JR.

Appellant No. 1027 MDA 2016

Appeal from the Judgment of Sentence dated March 29, 2016

In the Court of Common Pleas of Cumberland County

Criminal Division at No(s): CP-21-CR-0003688-2014

BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.: FILED NOVEMBER 02, 2017

Appellant, Robert Emanuel Jackson, Jr., appeals from the judgment of 

sentence imposed after he was convicted by a jury of rape, aggravated 

assault, and related offenses.1 We affirm.

We state the facts in the light most favorable to the Commonwealth, 

as verdict-winner. See Commonwealth v. McFadden, 156 A.3d 299, 303 

(Pa. Super. 2017). As the trial court explained, in December 2013, the 

____________________________________________

1 Specifically, Appellant was convicted of rape by threat of forcible 

compulsion, 18 Pa.C.S. § 3121(a)(2); involuntary deviant sexual intercourse 

by threat of forcible compulsion, id. § 3123(a)(2); burglary of a building 

adapted for overnight accommodations while a person is present, id.

§ 3502(a)(1); sexual assault, id. § 3124.1; aggravated assault, id.

§ 2702(a)(4); possession of a firearm by a person prohibited from 

possession, id. § 6105(a)(1); criminal trespass by entry of a building or 

occupied structure, id. § 3503(a)(1)(i); unlawful restraint creating a risk of 

serious bodily injury, id. § 2902(a)(1); terroristic threats with intent to 

terrorize another, id. § 2706(a)(1); and simple assault, id. § 2701(a)(3). 
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victim, Jennifer Woodard, began a romantic relationship with Appellant. 

Trial Ct. Op. at 2; N.T. Trial at 60-61. Then —

In September 2014, she unilaterally ended the relationship. 

Despite the end of the relationship, [Appellant] would not stop 

contacting the victim by phone and social media[,] forcing her to 

block him electronically on all platforms. All this 

notwithstanding, on October 21, [2014, Appellant] showed up at 

[Ms. Woodard]’s house unannounced and uninvited, pushed his 

way in and pressured [Ms. Woodard] into a discussion about 

their relationship. Ultimately, she convinced him to leave, which 

he did without harming her, though he was extremely angry she 

had not permitted him to stay overnight.

Trial Ct. Op. at 2; see also N.T. Trial at 63. 

On October 31, 2014, Ms. Woodard was alone in her home getting 

ready to go out with friends. Trial Ct. Op. at 2; see also N.T. Trial at 64-65. 

Appellant knocked on her door, and, when she answered it, he pulled a gun 

on her, pressed it against her head, and forced his way inside. “With the 

gun held to her head, he said, ‘I’m going to kill you, bitch, and I’m going to 

kill myself.’” Trial Ct. Op. at 2 (quoting N.T. Trial at 66). Appellant “hit 

[Ms. Woodard] across the face, and [she] fell down.” N.T. Trial at 66. 

Ms. Woodard later testified that Appellant hit her with “[h]is hand . . . [o]n 

the left side of [her] face” “several times”; she added: “I don’t know if he 

punched me [or] hit me with an open hand.” Id. When asked if Appellant 

“hit you hard,” Ms. Woodard answered affirmatively. Id. at 92.

Appellant “then grabbed [Ms. Woodard] by her hair and pulled her 

across the floor into her bedroom while she begged for her life.” Trial Ct. 

Op. at 2; see also N.T. Trial at 66-67. He closed the door and pointed the 
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gun at her. Trial Ct. Op. at 2. The trial court then described Appellant’s 

assault: 

As he forced [Ms. Woodard] to take her clothes off, he taunted 

her by tracing the point from the laser scope of the gun over 

various parts of her body. He demanded she perform oral sex 

on him and threatened that if she failed to comply her children 

would never see her again. During these threats, [Appellant] 

removed the jacket he was wearing but kept his clothes on while 

he had his penis out and was masturbating. [Appellant] began 

counting out loud[,] threatening that if [Ms. Woodard] did not 

comply with his demands by the time he reached 10 he would 

kill her. In fear for her life and against her will, [Ms. Woodard] 

complied, and performed oral sex on [Appellant]. During the 

entire time she was being forced to have [Appellant]’s penis in 

her mouth, he had the gun pressed against her head.

After a period of time, [Appellant] forced [Ms. Woodard] onto 

her bed and penetrated her vaginally. He was not wearing a 

condom and ejaculated almost immediately. He then attempted 

to penetrate her anally but, in pain, she screamed and jumped 

away. At that moment, [Appellant]’s demeanor suddenly 

changed. With seeming remorse, he said he couldn’t believe he 

hit her and raped [her] and that he could not go to jail. Still in 

fear for her life, as [Appellant] remained armed, [Ms. Woodard] 

told him that she would never tell anyone what happened and 

tried to convince him to consider his love for his children and 

just to leave peacefully.

Id. at 2-3; see also N.T. Trial at 67, 70. 

In an apparent attempt to explain his actions and state of mind, 

Appellant then forced Ms. Woodard to read aloud entries from a personal 

journal that were stored on his cellular telephone. Cmwlth. Ex. 20, 

Attachment #2; N.T. Trial at 70-74. In the journal, Appellant wrote:

My feelings all over the place. I have been talking to my friend, 

the one who have been listening. Sometimes I feel she hears 

what she wants to hear and not what I’m saying. Sometimes I 

don’t even know what I’m saying.
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I miss my son. He’s 15 and I haven’t seen him since he was 6. 

His mother and I never got along. I married her because she 

was pregnant. I thought I loved her but never did. . . . I never 

knew there were so much raw emotions inside me. Never knew 

the level of my hurt until now. . . . I want to badly share this 

with Jennifer but I know she doesn’t care one bit about me. . . . 

The anger is fading; my focus and future seem bright. . . . For so 

long, too long I have been hurting. For nothing but the love of 

God can ease my pain. I became numb to this pain, never 

knowing it was killing me slowly only surfacing to cause damage 

to those around me, to those I love.

My hurtful words were, are a result of that pain. . . . I caused 

pain that no apologies can heal. . . . Many thoughts flooding my 

mind, a lot of what ifs, could’ve been. If this keeps up its going 

to be a long day. . . . Reached out to three Therapists this 

morning that accepts my insurance. . . . First appointment is 

Friday October 31, 2014. To be honest, I’m a little bit nervous. 

No correction, I’m scared to death! . . . Its 3:00 and I can only 

imagine the smile on her face because she just got off. . . . Here 

I go again, thinking about her. . . . Now the drive home with 

nothing but my thoughts. . . . To say I wasn’t thinking about 

Jennifer would be a lie. . . . Really don’t want to be here. Sitting 

here thinking. . . . Do I really want that? . . . Only in my mind 

have I spoken with her. . . . I’ve been talking to a great friend 

about my feelings these last few days. . . . While talking to my 

friend I must have called Jennifer the “b” word a hundred times. 

I have never called her out of her name before so I don’t know 

why I am so angry. . . . I don’t know but something is causing 

my anger towards her and I can’t fully explain it. . . . Really not 

in the mood to write, talk or whatever it is I’m doing here. 

Starting to wonder what the purpose is anyway. . . . These 

feelings. Where the hell are they coming from? Why do I feel 

the way I do? No damn wonder I am 48 and alone. . . . I’m 

sitting at work and really didn’t feel like coming in but I’m glad I 

am here. I don’t know if I could stand the random thoughts that 

flood my mind if I had nothing to focus on all day. I’ve been 

there before the pain, damn to say the least. Not a good feeling. 

. . . I think I smiled a little. Haven’t really thought about 

Jennifer too much. Don’t know if that’s good or bad. . . . 

Thinking about Jennifer again. Wondering if she misses me, is 

her heart aching like mine? . . . So embarrassing to say the 

least. . . . The thoughts, images and unknown are consuming 

me. She is all I think about. I want bad to contact her but I 

know she wouldn’t take my calls, answer my text or email. . . . 
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But to be honest, I’m scared of the things she will pull out of my 

head. . . . Was she afraid of what was in her head, was it too 

much?

I’m feeling anxious! Man, I hate this feeling....

Cmwlth. Ex. 20, Attachment #2, at 1-4. The journal also included what the 

trial court described as “an entry written just before the assault occurred 

addressed to [Ms. Woodard] describing how [Appellant] missed [her] and 

wanted to get back together with her”; the court added that this passage 

had an “ominous ending.” Trial Ct. Op. at 7; see also Cmwlth. Ex. 20, 

Attachment #2, at 1. The entry reads:

Dear Jennifer,

Words cannot describe how much you mean to me. When I look 

at our pictures I smile, cry and laugh all at once. I will forever 

be grateful of the time we spent together. You were that once 

great love I let get away. For that, I’m the fool.

Remember Me,

Robert

Journal complete, outcome UNKNOWN

Id. (capitalization in original).

The trial court continued:

After [Ms. Woodard] finished reading the journal entries[, 

Appellant] professed his love for her repeatedly and then left. 

As a result of the attack, [Ms. Woodard] suffered facial bruising 

and fear for her life and safety and the safety of her children.

In extreme distress and afraid [Appellant] may return, 

[Ms. Woodard]’s first concern was for her two children who were 

out with friends. She left to pick up her children . . . On the ride 

over, she called 911.
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Trial Ct. Op. at 3-4; see also N.T. Trial at 70-75. Ms. Woodard had a rape 

kit examination performed by a nurse at Harrisburg Hospital, and the DNA 

analysis from it “resulted in a match for Appellant’s semen.” Trial Ct. Op. at 

4; see also N.T. Trial at 78, 148, 293-94. A medical examination also noted 

that Ms. Woodard’s face was bruised and she had blood in her nasal 

passage. Trial Ct. Op. at 3.

Police found Appellant’s coat in Ms. Woodard’s residence. Trial Ct. Op. 

at 4; see also N.T. Trial at 78-79. In a search of Appellant’s residence, they 

found a loaded gun with a laser sight that Ms. Woodard later identified as 

the gun used during Appellant’s assault. Id. at 85, 208-10. They also found 

an iPad that contained a document titled “Diary of a Broken Man”; it made 

several references to Ms. Woodard and contained passages that 

Ms. Woodard identified as matching those from the journal that Appellant 

forced her to read on the night of the assault. Id. at 70, 210-11, 262.

At 6:43 P.M. on November 1, 2014, under the supervision of police, 

Ms. Woodard made a recorded phone call to Appellant in which she 

confronted him about the attack. Appellant said he was driving to North 

Carolina, ended the call because of poor cell phone reception, and then 

called Ms. Woodard back. Appellant’s return call also was recorded by the 

police. Trial Ct. Op. at 4; see also Cmwlth. Ex. 10 (recording of call). 

During the calls, Appellant did not admit assaulting Ms. Woodard but said he 

did not plan to hurt her and would be sending her a letter. 
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Ultimately, Appellant was arrested and charged with numerous 

offenses. Prior to his trial, he moved to exclude the iPad document (which 

was referred to during a pretrial hearing on his motion as Appellant’s 

“diary”) and the November 1, 2014 recorded calls on the ground that they 

included inadmissible hearsay. The trial court denied those motions. It 

found that the calls were “not hearsay” and “not more prejudicial than 

probative.” N.T. Trial at 14-15.2 Similarly, it found that “the contents of the 

diary are not hearsay and are relevant to the elements of various offenses.” 

Id. at 15.

Appellant was tried before a jury on December 14-17, 2015. During 

the trial, Ms. Woodard provided a chronology of events, as well as graphic 

and detailed testimony about the Appellant’s crimes. N.T. Trial at 60-75, 78. 

In the midst of her testimony, the two recorded phone calls were played for 

the jury. See id. at 86. Officer Jason Reed of the East Pennsboro Township 

Police Department testified that when he went to Ms. Woodard’s home the 

day after the assault, he found a coat on the floor that Ms. Woodard 

reported belonged to Appellant. Id. at 124, 128. Detective Shane Cohick of 

the East Pennsboro Township Police Department testified that a search of 

Appellant’s bedroom at his West Virginia residence recovered a black metal 

box that contained a .40 caliber Glock pistol that was loaded with a full 

magazine, including a bullet inside the barrel, with a laser sight. Id. at 202, 

____________________________________________

2 The hearing immediately preceded the trial, and it was transcribed as part 

of the trial transcript. 
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205-08, 210. The jury heard testimony from a representative of AT&T 

Wireless, the service provider for Appellant’s cellular telephone, that cell 

phone tower location records for Appellant’s phone corroborated 

Ms. Woodard’s timeline of events and confirmed Appellant’s presence in the 

vicinity of Ms. Woodard’s home at the time of the attack. Id. at 246, 252-

55; Trial Ct. Op. at 4. Special Agent Matthew Zahm of the computer 

forensics unit of the Pennsylvania Office of Attorney General testified that he 

had found a document entitled “Diary of a Broken Man” on Appellant’s iPad, 

and he related some of its contents; later, in response to a request from the 

jury, the jury was given a copy of that document for its review in the jury 

room. N.T. Trial at 260, 262, 373-74. Forensic DNA scientist 

Brittni Andaloro testified that Appellant’s DNA was present inside 

Ms. Woodard’s vagina. N.T. Trial at 286, 293-94; Trial Ct. Op. at 4. 

On December 17, 2015, the jury convicted Appellant of the above 

offenses. Appellant then was sentenced to an aggregate sentence of 20.5 to 

43 years in a State Correctional Facility. Trial Ct. Op. at 4-5. At the time of 

sentencing, the trial court stated that “a lesser sentence would depreciate 

the seriousness of the crimes involved.” N.T. Sentencing at 7.

On April 8, 2016, Appellant filed post-sentence motions for 

modification of sentence and for a new trial on the basis that the verdict was 

against the weight of the evidence. The post-sentence motion did not 

challenge the sufficiency of the evidence. On May 24, 2016, the trial court 

denied Appellant’s post-sentence motions.
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On June 23, 2016, Appellant filed a notice of appeal. Appellant raises 

four issues for our review:

I. Did the trial court abuse its discretion when it denied 

Appellant’s pre-trial motion to exclude a consensualized phone 

call and Appellant’s journal from the Commonwealth’s case in 

chief?

II. Whether the evidence was insufficient to prove beyond a 

reasonable doubt that Appellant is guilty of aggravated assault 

with a deadly weapon where Appellant’s conduct never caused 

any bodily injury with the deadly weapon?

III. Did the trial court err in denying Appellant’s motion for a 

new trial when the jury’s verdict was against the weight of the 

evidence because the Commonwealth failed to meet its burden 

to sustain the alleged charges?

IV. Did the trial court abuse its discretion when it imposed 

consecutive sentences where Appellant’s conduct was not so 

egregious to warrant a twenty[] and one-half to forty-three 

(2[0].5-43) year sentence?[3]

Appellant’s Brief at 10 (reordered to facilitate disposition, and suggested 

answers omitted).

Admission of Evidence

The admission of evidence is committed to the sound discretion 

of the trial court and an appellate court may reverse only upon a 

showing that the trial court clearly abused its discretion.

Admissibility depends on relevance and probative value. 

Evidence is relevant if it logically tends to establish a 

material fact in the case, tends to make a fact at issue 

more or less probable, or supports a reasonable inference 

or presumption regarding a material fact. Once evidence 

is found to be relevant, it will be inadmissible only if its 

____________________________________________

3 Appellant repeatedly states incorrectly in his brief that he was sentenced to 

21.5-40 years. Appellant’s Brief at 10, 23-24.
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probative value is substantially outweighed by the danger 

of unfair prejudice or confusion.

Unfair prejudice is a tendency to suggest a decision on an 

improper basis or to divert the jury’s attention away from its 

duty of weighing the evidence impartially.

McFadden, 156 A.3d at 309 (citations and quotation marks omitted).

Recorded Telephone Calls

Appellant argues:

The trial court abused its discretion when it denied Appellant’s 

pre-trial motion to exclude . . . consensualized phone call[s] . . . 

from the Commonwealth’s case in chief . . . under theories of 

hearsay and that the evidence was more prejudicial than 

probative. . . . [N]othing in [the recorded calls] would amount to 

an admission that would warrant admission under the current 

rule of evidence.

Appellant’s Brief at 33. The Commonwealth answers that “the trial court 

properly admitted the recording of the consensual phone conversation . . . 

because [it] qualif[ies] as admissible hearsay under the Rules of Evidence.” 

Commonwealth’s Brief at 25; see also id. at 27. The Commonwealth 

continues that, when Appellant’s “statement is considered in the context of 

Ms. Woodard confronting [Appellant] about the attack that occurred the 

previous night, it is clear that it qualifies as an admission by an opposing 

party and is admissible under Rule 803(25)(A).” Id. In holding that the 

recordings were admissible, the trial court agreed with the Commonwealth: 

During the taped conversation, [Appellant] made numerous 

statements that can be characterized as admissions. . . . 

[Appellant’s] comments, considered in the context of the victim 

confronting [Appellant] the day after his brutal attack upon 

her[,] constitute sufficient admissions to permit them to be 
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offered against [Appellant]. This [trial] court did not err in 

admitting the recording of the telephone call.

Trial Ct. Op. at 6.

Although, generally, “[a]ll relevant evidence is admissible,” Pa.R.E. 

402, hearsay evidence, even if relevant, is usually not admissible. Pa.R.E. 

802. “‘Hearsay’ means a statement that (1) the declarant does not make 

while testifying at the current trial or hearing; and (2) a party offers in 

evidence to prove the truth of the matter asserted in the statement.” 

Pa.R.E. 801(c). However, an opposing party’s admission is not excluded 

under the hearsay rule. Rule of Evidence 803(25)(A) states:

The following are not excluded by the rule against hearsay, 

regardless of whether the declarant is available as a witness: 

. . .

An Opposing Party’s Statement. The statement is offered 

against an opposing party and:

(A) was made by the party in an individual or representative 

capacity . . . .

Pa.R.E. 803(25)(A). We have explained this exception as follows:

Party admissions are not subject to hearsay exclusion because it 

is fair in an adversary system that a party’s prior statements be 

used against him if they are inconsistent with his position at 

trial. In addition, a party can hardly complain of his inability to 

cross-examine himself. A party can put himself on the stand 

and explain or contradict his former statements. Thus, in 

criminal cases, th[e Supreme Court of Pennsylvania] has 

consistently held that a defendant’s out-of-court statements are 

party admissions and are exceptions to the hearsay rule.

Commonwealth v. Edwards, 903 A.2d 1139, 1157-58 (Pa. 2006) 

(citations omitted; some formatting added), cert. denied, 549 U.S. 1344 
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(2007). 

Appellant’s arguments in opposing admissibility of this evidence (and, 

to some extent, the responses by the Commonwealth) are based on a 

misunderstanding of Rule 803(25)’s hearsay exception for statements by an 

opposing party. To be admissible, the statement does not need to be a 

confession to the crime. Commonwealth v. Simmons, 662 A.2d 621, 635 

(Pa. 1995), cert. denied, 516 U.S. 1128 (1996). Indeed, it need not even 

be contrary to the declarant’s interest. As we observed in Commonwealth 

v. Hoyman, 561 A.2d 756, 761 (Pa. Super. 1989), “declarations against 

interest and admissions are at times misunderstood by lawyers. A 

declaration against interest must have been against the declarant’s interest 

when made. No such requirement exists with respect to admissions.”4 To 

dispel the confusion, the drafters of the Rules of Evidence removed the 

common term “admission” when describing the exception in Rule 803(25), 

making clear that any “statement” by an opposing party is admissible, not 

just an “admission.” Pa.R.E. 803, Comment. Thus, Pennsylvania decisions 

frequently admit statements by a criminal defendant that fall far short of an 

admission of guilt.5 There is no dispute that the statements made during 

____________________________________________

4 Declarations against interest fall under a different Rule of Evidence relating 

to hearsay exceptions applicable where the declarant is unavailable as a 

witness. See Pa.R.E. 804(b)(3). 

5 See, e.g., Commonwealth v. Paddy, 800 A.2d 294, 312 & n.11 (Pa. 

2002) (defendant’s warning that witness was “saying things she shouldn’t 

say” was admissible as a statement by a party opponent); Commonwealth 

(Footnote Continued Next Page)
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the recorded phone calls at issue here were made by Appellant. Accordingly, 

they were statements by a party opponent that were admissible on 

introduction by the Commonwealth under Rule 803(25); they are not 

inadmissible hearsay.

The trial court held that Appellant’s statements during the phone calls 

not only were admissible exceptions to the hearsay rule but were probative 

and not unduly prejudicial. We agree. During the first of the November 1, 

2014 phone calls, when Ms. Woodard asked for an explanation of Appellant’s 

conduct the night before, Appellant, who expressed a concern that 

Ms. Woodard might be recording the call, responded, “You’re going to get a 

letter in the mail.” Cmwlth. Ex. 10, First Recorded Call, at approx. 5:55; 

see id. at approx. 2:26 (inquiry by Appellant about whether call was being 

recorded).6 In response to Ms. Woodard’s repeated pleas for an explanation, 

(Footnote Continued) _______________________

v. Smith, 540 A.2d 246, 257 (Pa. 1988) (defendant’s statement asking 

whether witness had seen decedent was admissible as an opposing party’s 

statement); Commonwealth v. Tervalon, 345 A.2d 671, 676 (Pa. 1975) 

(defendant’s statement contradicting wife’s statement about his 

whereabouts on night crime committed admissible as party admission; 

“extrajudicial statements made by a defendant may be used against that 

defendant although they contain no admission of guilt”).

6 We have been hampered in our review of this issue by the absence from 

the certified record of a transcript of the telephone calls. During the pretrial 

hearing, the Commonwealth stated that it had a transcript of the recorded 

calls “here somewhere” that it would provide to the trial court. N.T. Trial at 

7. But it appears that the transcript never was provided, since the certified 

record does not include it. The record does, however, contain a compact 

disc that contains the audio recordings that were played before the jury, see

Cmwlth. Ex. 10, and we have listened to those recordings in deciding this 

issue. 
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Appellant stated that “I don’t have the words to help you right now” and “I 

never planned on hurting you, killing you.” Id. at approx. 9:34, 11:27. 

Appellant made similar statements in the second call and, after again 

expressing concern that he was being recorded, ended the call by stating 

that he would tell Ms. Woodard what she wanted to know in another call that 

he would make to her at an unscheduled time the next day. Id., Second 

Recorded Call, at approx. 0:45, 1:25, 7:25; see id. at approx. 4:43 

(expressed concern about recording of call).

Although Appellant’s statements during these calls were ambiguous, 

we agree with the trial court that they were probative and admissible. They 

evidenced an understanding that events had occurred about which 

Ms. Woodard was seeking an explanation, a desire to disclaim an intent to 

harm or kill Ms. Woodard, and an intention to provide an explanation at a 

later time when police might not be listening. In opposing admission of the 

statements, Appellant argues that they suggest that he had “a less than 

rational state of mind” and “was questioning his sanity.” Appellant’s Brief at 

34-35. In the context of the facts of this case, we do not view that 

possibility as so prejudicial to Appellant as to make these statements 

inadmissible. The appropriate meaning and interpretation to give the 

statements was a question for the jury, which also was in the best position 

to decide what weight should be assigned to them. The trial court did not 

err in admitting the statements. 
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Appellant’s Journal

Appellant also contends that the trial court abused its discretion when 

it denied Appellant’s pretrial motion to exclude his journal (or “diary”) from 

the Commonwealth’s case in chief. Appellant’s Brief at 33. The journal, as 

described by the trial court, “included an entry written just before the 

assault occurred” that was addressed to Ms. Woodard and included “an 

ominous ending: ‘Journal complete[, o]utcome [UNKNOWN].” Trial Ct. Op. 

at 7; see also Cmwlth. Ex. 20, Attachment #2, at 1. Appellant asserts that 

the journal was written by him before the incident at issue but “contain[s] 

no plans to rape or injure [Ms.] Woodard.” Appellant’s Brief at 34-35. He 

asserts that the admission of the journal was improper “under theories of 

hearsay and that the evidence was more prejudicial than probative.” Id. at 

35.

The Commonwealth argues that Appellant’s “diary was comprised of 

admissible hearsay as it showed his state of mind directly prior to the attack. 

. . . [Appellant]’s diary meets the requirements of Rule 803(3) and was 

properly admitted.” Commonwealth’s Brief at 27-28. The trial court 

concluded: “Obsessive diary entries addressed to the victim written hours 

before she was attached by [Appellant] are clearly relevant to establishing 

his state of mind and motive on the night of the crime.” Trial Ct. Op. at 7.

There is no dispute that the journal was written by Appellant. We 

therefore conclude that its content was admissible because it contained 
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statements by a party opponent under Rule 803(25). We also conclude that 

the journal was admissible under Pa.R.E. 803(3), which states:

The following are not excluded by the rule against hearsay, 

regardless of whether the declarant is available as a witness: 

. . . A statement of the declarant’s then-existing state of mind 

(such as motive, intent or plan) or emotional, sensory, or 

physical condition (such as mental feeling, pain, or bodily 

health), but not including a statement of memory or belief to 

prove the fact remembered or believed unless it relates to the 

validity or terms of the declarant’s will.

Throughout the journal, written in the days and hours immediately 

preceding his crimes, Appellant wrote about his “feelings,” his “emotions,” 

and how he “feel[s].” Cmwlth. Ex. 20, Attachment #2, at 1-2. Specifically, 

he wrote about Ms. Woodard – what he “wants” from her, that he “know[s] 

she doesn’t care one bit about [him],” and that he is “so angry” with her and 

feels “anger towards her.” Id. at 1-2. These statements demonstrate 

Appellant’s “state of mind” and his “emotional . . . condition,” both in 

general and explicitly about Ms. Woodard. Pa.R.E. 803(3). Thus, the 

journal was not excluded by the rule against hearsay. 

Appellant’s argument that the journal was unduly prejudicial mirrors 

his argument regarding his statements during the recorded telephone calls, 

and we reject it for the same reasons. We therefore hold that the trial court 

did not abuse its discretion by permitting admission of the journal.

Sufficiency

Appellant contends that “the evidence was insufficient to prove beyond 

a reasonable doubt that Appellant committed aggravated assault with a 
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deadly weapon where the Commonwealth’s evidence failed to establish that 

Appellant caused any bodily injury with a deadly weapon . . . or attempted 

to cause bodily injury with a deadly weapon[.]” Appellant’s Brief at 19-20.

Our standard of review for a sufficiency of the evidence 

challenge is well established:

A claim challenging the sufficiency of the evidence 

presents a question of law. We must determine whether 

the evidence is sufficient to prove every element of the 

crime beyond a reasonable doubt. We must view evidence 

in the light most favorable to the Commonwealth as the 

verdict winner, and accept as true all evidence and all 

reasonable inferences therefrom upon which, if believed, 

the fact finder properly could have based its verdict.

McFadden, 156 A.3d at 303 (citations omitted).

Appellant argues that Ms. Woodard testified that he “struck” her “with 

his hand knocking her to the floor, then drug her to the bedroom by her 

hair.” Appellant’s Brief at 20 (citing N.T. Trial at 66). Appellant continues 

that, “[o]n cross examination Ms. Woodard specifically stated that she was 

punched or struck with an[] open hand three times on the left side of her 

face knocking her to the floor.” Id. at 21 (citing N.T. Trial at 92). Appellant 

maintains that this testimony demonstrates that he “never caused or 

attempted to cause bodily injury with a deadly weapon.” Id. at 22. He 

concludes: “Although Appellant did possess a weapon, it was never used on 

[Ms.] Woodard. Thus, the Commonwealth has failed to provide sufficient 

evidence to show that Appellant caused or attempted to cause the requisite 

bodily injury with a deadly weapon.” Id.
J-A15025-17

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The Commonwealth insists that “[t]here is sufficient evidence to 

sustain [Appellant]’s conviction of aggravated assault as the victim suffered 

injury when [Appellant] forcibly raped her at gunpoint.” Commonwealth’s 

Brief at 13. The Commonwealth asserts that Appellant’s argument “is 

without merit as [Appellant] forcibly pressed the gun into the victim’s head 

and face causing injury.” Id. The Commonwealth states:

In this case, the evidence clearly supports [Appellant]’s 

conviction as Ms. Woodard testified that [Appellant] charged into 

her home with a handgun, shoved the handgun against her 

head, and proceeded to rape her at gunpoint. . . . Clearly, the 

jury’s finding of guilt is supported by sufficient evidence and 

[Appellant] must be denied relief.

Id. at 14-15.7

The trial court stated that “this issue is waived,” because Appellant 

“failed to raise this issue in any way” in his post-sentence motion. Trial Ct. 

Op. at 10. However, because a challenge to the sufficiency of the evidence 

may be raised for the first time on appeal, Appellant did not waive this 

claim, even though he did not include it in his post-sentence motions. See 

Pa.R.Crim.P. 606(A)(7); Commonwealth v. Wertelet, 696 A.2d 206, 208 

n.2 (Pa. Super. 1997). 

The trier of fact is free to believe all, part, or none of the evidence. 

Commonwealth v. Melvin, 103 A.3d 1, 40 (Pa. Super. 2014). Moreover, 

____________________________________________

7 The Commonwealth adds that Appellant’s “sentence on Aggravated Assault 

is concurrent to sentences on several other charges. Even if this Court were 

to find that there is insufficient evidence, [Appellant]’s aggregate sentence 

would not change.” Commonwealth’s Brief at 15 n.11.
J-A15025-17

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the trier of fact may base a conviction solely on circumstantial evidence. In 

reviewing the evidence, the appellate court may not weigh the evidence and

substitute its judgment for that of the fact-finder. Id.

“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). Section 2301 of the Crimes Code 

defines “bodily injury” as “[i]mpairment of physical condition or substantial 

pain.” 18 Pa.C.S. § 2301. Section 2301 likewise defines “deadly weapon” 

as: 

Any firearm, whether loaded or unloaded, or 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.

Id.

Here, viewing the evidence in a light most favorable to the 

Commonwealth as the verdict winner, the record establishes that Appellant 

repeatedly pressed his firearm against Ms. Woodard’s head, and she suffered 

facial bruising. See McFadden, 156 A.3d at 303; see also Trial Ct. Op. at 

3. The jury, as factfinder, properly could have based its verdict on the 

reasonable inference that Ms. Woodard’s facial bruising was caused by 

Appellant pressing the firearm to her face and head. See McFadden, 156 

A.3d at 303; see also Trial Ct. Op. at 3. We have held that bruising may 

constitute “bodily injury” as defined in Section 2301. See In the Interest 

of M.H., 758 A.2d 1249, 1252 (Pa. Super. 2000), appeal denied, 766 A.2d 
J-A15025-17

- 20 -

1250 (Pa. 2001). Although the firearm that inflicted this injury was not used 

in the traditional way, it still meets Section 2301’s definition of a “deadly 

weapon” (“[a]ny firearm, whether loaded or unloaded”). Hence, the 

evidence was sufficient to prove every element of 18 Pa.C.S. § 2702(a)(4) 

beyond a reasonable doubt. See McFadden, 156 A.3d at 303. Appellant’s 

sufficiency challenge therefore fails.

Weight of the Evidence

Next, Appellant contends:

The trial court erred in denying Appellant’s motion for a new trial 

when the jury’s guilty verdict was against the weight of the 

evidence because the Commonwealth failed to meet its burden 

to sustain the charges of rape, [involuntary deviant sexual 

intercourse], burglary, sexual assault, aggravated assault, 

possession of a firearm prohibited, criminal trespass, unlawful 

restraint, terroristic threats, and simple assault.

Appellant’s Brief at 27.

A motion for a new trial alleging that the verdict was against the 

weight of the evidence is addressed to the discretion of the trial 

court. An appellate court, therefore, reviews the exercise of 

discretion, not the underlying question [of] whether the verdict 

is against the weight of the evidence.

Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011) (citation 

omitted).

The weight of the evidence is exclusively for the finder of fact[,] 

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

determine the credibility of the witnesses.

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 
J-A15025-17

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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.

In order for a defendant to prevail on a challenge to the weight 

of the evidence, the evidence must be so tenuous, vague and 

uncertain that the verdict shocks the conscience of the court. 

. . . [A]n appellate court cannot substitute its judgment for that 

of the finder of fact.

Commonwealth v. Talbert, 129 A.3d 536, 545–46 (Pa. Super. 2015) 

(internal citations and quotation marks omitted; some formatting added), 

appeal denied, 138 A.3d 4 (Pa. 2016).

Here, the trial court addressed Appellant’s weight of the evidence 

challenge as follows:

At the hearing on [Appellant]’s Post-sentence Motion, his counsel 

argued that the jury’s verdict was against the weight of the 

evidence because even though the alleged attack occurred on 

Halloween night in a crowded residential neighborhood, a police 

canvass of the area revealed no witnesses who heard the attack. 

He also argued that despite [Ms. Woodard]’s account of the 

attack, there were no visible extreme physical injuries on her 

body to substantiate her claims.

These allegations are insufficient to shock the court’s conscience 

and compel us to order a new trial. First, whether people who 

may have been outside of [Ms. Woodard]’s home heard the 

attack is really not relevant. Next, [Appellant] raped 

[Ms. Woodard] at gunpoint thereby using the weapon to force 

her compliance which would help explain the lack of extreme 

physical injuries. Also, as noted by the nurse’s testimony at 

trial, lack of evidence of physical trauma is not necessarily 

evidence that a rape did not occur. Finally, [t]here was DNA 

evidence showing [Appellant] had had intercourse with 

[Ms. Woodard] and his coat was left at the scene of the crime. 

Based on these facts and all the evidence introduced at trial the 
J-A15025-17

- 22 -

court is well-satisfied that the jury’s verdicts are not against the 

weight of the evidence.

Trial Ct. Op. at 8. We agree with the trial court’s reasoning.

Appellant essentially asks us to reassess Ms. Woodard’s credibility and 

to reweigh the testimony and the evidence presented at trial. Appellant’s 

Brief at 27-32. We cannot and will not do so. See Talbert, 129 A.3d at 

546. The jury found credible Ms. Woodard’s testimony, which was 

corroborated by other testimony and physical evidence. See id. at 545. 

Thus, the verdict was not so contrary to the evidence as to shock the court’s 

conscience, see id., and we discern no abuse of discretion by the trial court. 

See Ramtahal, 33 A.3d at 609. 

Sentencing

Lastly, Appellant argues:

The trial court erred when it denied Appellant’s post-sentence 

motion for modification of sentence where Appellant’s 

incarceration for twenty[] and a half to forty-three years 

(2[0].5-43), essentially amounts to a life sentence, and fails to 

consider the issues of protection of the public, gravity of the 

offense as it relates to the victim and the community, and the 

rehabilitative needs of the Appellant as required by 42 Pa.C.S.A. 

§9721(b).

Appellant’s Brief at 23. Appellant also maintains that his sentence is 

“manifestly excessive such that it constitutes too severe a punishment where 

Appellant’s incarceration for twenty[] and a half to forty-three (2[0].5-43) 

years[] essentially amounts to a life sentence[.]” Id. at 23-24. Additionally, 

Appellant insists that the “[t]rial court failed to consider the relationship 
J-A15025-17

- 23 -

between the [A]ppellant and [Ms.] Woodard” and that “[Ms.] Woodard 

suffered no physical injury as a result of the offenses.” Id. at 25.

The Commonwealth responds that the trial court “did not abuse its 

discretion” when Appellant’s “sentence is within the standard guideline range 

and when [Appellant] brutally raped the victim at gunpoint.” 

Commonwealth’s Brief at 16.

The trial court observed that Appellant’s sentence “is a standard range 

sentence and in light of the horrible violence inflicted on the victim, it was 

wholly appropriate.” Trial Ct. Op. at 9. The trial court reiterated that “a 

lesser sentence would depreciate the seriousness of the crimes involved.” 

Id. It “submits that this standard range sentence is not disproportionate to 

[Appellant]’s crimes.” Id.

“A challenge to the discretionary aspects of a sentence is not 

appealable as of right.” Commonwealth v. Luketic, 162 A.3d 1149, 1159 

(Pa. Super. 2017) (citation and internal brackets omitted). We will exercise 

our discretion to consider such a petition only if (1) the appellant has filed a 

timely notice of appeal; (2) he has preserved the sentencing issue at the 

time of sentencing or in a motion to reconsider and modify his sentence; (3) 

he presents the issue in a properly framed statement in his brief under Rule 

2119(f) of the Rules of Appellate Procedure, pursuant to Commonwealth v. 

Tuladziecki, 522 A.2d 17 (Pa. 1987); and (4) in the words of Section 

9781(b) of the Sentencing Code, 42 Pa.C.S. § 9781(b), “it appears that 

there is a substantial question that the sentence imposed is not appropriate 
J-A15025-17

- 24 -

under this chapter.” See, e.g., Commonwealth v. Haynes, 125 A.3d 800,

807 (Pa. Super. 2015), appeal denied, 140 A.3d 12 (Pa. 2016); 

Commonwealth v. Zelinski, 573 A.2d 569, 574-75 (Pa. Super.), appeal 

denied, 593 A.2d 419 (Pa. 1990). “A defendant presents a substantial 

question when he sets 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.” Luketic, 162 A.3d at 1160 (citation omitted).

Here, Appellant filed a timely notice of appeal, preserved his 

sentencing issue in a post-sentence motion to modify his sentence, and 

presented the issue in a properly framed statement in his brief pursuant to 

Pa.R.A.P. 2119(f). See Appellant’s Brief at 17-18; see also Tuladziecki, 

522 A.2d 17; Haynes, 125 A.3d at 807; Zelinski, 573 A.2d at 574-75. 

Finally, Appellant presents a substantial question by setting forth an 

argument that his sentence violates 42 Pa.C.S. § 9721(b), a provision of the 

Sentencing Code. Appellant’s Brief at 18; see also Luketic, 162 A.3d at 

1160. We will thus exercise our discretion to consider Appellant’s sentencing 

claim. See Haynes, 125 A.3d at 807; Zelinski, 573 A.2d at 574-75.

Our standard of review follows:

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 order to establish that 

the sentencing court abused its discretion, the defendant 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. The rationale behind such 

broad discretion and the concomitantly deferential standard of 
J-A15025-17

- 25 -

appellate review is that the sentencing court is in the best 

position to determine the proper penalty for a particular offense 

based upon an evaluation of the individual circumstances before 

it. To determine whether the trial court made the proper 

considerations during sentencing, an appellate court must, of 

necessity, review all of the judge’s comments. As this Court has 

stated, the judge’s statement must clearly show that he has 

given individualized consideration to the character of the 

defendant. . . . [I]t is an abuse of discretion when the nature of 

the criminal act is used as the sole basis for the determination of 

the length of sentence.

Luketic, 162 A.3d at 1162-63, 1165 (internal brackets, citations, and 

quotation marks omitted).

We will address each of Appellant’s reasons for contesting his sentence 

in turn. First, Appellant contends that his sentence “essentially amounts to a 

life sentence.” Appellant’s Brief at 23; see also id. at 23-24. In 

Commonwealth v. Baker, 72 A.3d 652, 664 (Pa. Super. 2013), appeal 

denied, 86 A.3d 231 (Pa. 2014), we held that a sentence of 15-31 years’ 

imprisonment for various drug offenses was not unreasonable, despite the 

fact that the defendant was seventy years old, because the sentencing court 

considered the defendant’s personal characteristics, including his age. We 

held that so long as that the sentencing court was aware of the defendant’s 

age and considered it during sentencing, a sentence that may result in the 

defendant spending the remainder of his life incarcerated is not an abuse of 

discretion. Id.

Here, Appellant was fifty years old at his sentencing hearing and was 

sentenced to 20.5-43 years’ confinement. As in Baker, the trial court was 

aware of Appellant’s age, because defense counsel informed it that Appellant 
J-A15025-17

- 26 -

was fifty years old during the hearing on Appellant’s post-sentence motion. 

Trial Ct. Op. at 9. 8 Hence, the trial court did take Appellant’s age into 

consideration.

Next, Appellant argued that his sentence “fails to consider the issues 

of protection of the public, gravity of the offense as it relates to the victim 

and the community[.]” Appellant’s Brief at 23. Appellant adds that the 

“[t]rial court failed to consider the relationship between the [A]ppellant and 

[Ms.] Woodard.” Appellant’s Brief at 25. The record belies these 

contentions, as the trial court specifically considered these factors, stating 

that it reflected upon “the horrible violence inflicted on the victim” and that 

“a lesser sentence would depreciate the seriousness of the crimes involved,” 

i.e., the gravity of the offense. Trial Ct. Op. at 9 (quoting N.T. Sentencing at 

7); see also Appellant’s Brief at 23.9

As for Appellant’s related assertion that “[Ms.] Woodard suffered no 

physical injury as a result of the offenses,” Appellant’s Brief at 25, we agree 

with the trial court’s observation that Appellant has “sought to minimize the 

____________________________________________

8

In Baker, the defendant potentially would have been released when he 

was 85 years old upon completing his minimum sentence. Here, Appellant 

will be just over 70 years old (the same age as the Baker defendant at the 

time of his sentencing) upon completing his minimum sentence.

9 Appellant’s argument that the trial court failed to consider “the relationship 

between the [A]ppellant and [Ms.] Woodward” is that: “This was not the act 

of a serial rapist; this was an incident between two people who had dated for 

almost a year.” Appellant’s Brief at 25. It is not entirely clear what Appellant 

is suggesting by this argument, but we discern no ground to conclude that 

Appellant’s rape of Ms. Woodward at gunpoint following their earlier dating 

relationship should in any way be deemed mitigating. 
J-A15025-17

- 27 -

degree of physical violence employed by [him] during the assault.” Trial Ct. 

Op. at 9. Ms. Woodard was raped at gunpoint and also suffered facial 

bruising, id. at 3, therefore belying Appellant’s claim that she “suffered no 

physical injury.” Appellant’s Brief at 25.

Appellant further maintains that the trial court did not consider his 

rehabilitative needs. Appellant’s Brief at 15, 23-26. But Appellant fails to 

explain what these rehabilitative needs are, and, thus, we conclude he has 

not established entitlement to relief on this point.

For all of these reasons, we conclude that all of Appellant’s issues on 

appeal are meritless.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/2/2017
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Statement of Matters Complained of on Appeal, filed August 19, 2016. 

1. The trial court erred by denying [Defendant's] pre-trial 

motion to exclude the recorded phone conversation between 

[Defendant] and the victim. 

2. The trial court erred by denying [Defendant's] pre-trial 

motion to exclude the contents of [Defendant's] diary seized 

by the Commonwealth. 

3. The trial court abused its discretion when it sentenced 

[Defendant] disproportionately to the crimes for which he 

was convicted. 

4. The trial court erred when it denied [Defendant's] post 

sentence motion based on the Jury's verdict being against 

the weight of the evidence. 

5. The trial court erred by denying [Defendant's] motion for 

judqrnent of acquittal pertaining to the sufficiency of the 

evidence for the aggravated assault - causing bodily injury 

with a deadly weapon count. 

the following matters on appeal: 

Terroristic Threats, Simple Assault, and Person Not to Possess a Firearm, complains of 

Burglary, Sexual Assault, Aggravated Assault, Criminal Trespass, Unlawful Restraint, 

judgment of sentence for the offenses of Rape, Involuntary Deviate Sexual Intercourse, 

The Defendant, Robert Emanuel Jackson, Jr., following his convictions and 

Masland, J., October 6, 2016:-- 

OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE 

PROCEDURE 1925 

ROBERT JACKSON CP-21-CR-3688-2014 

v. 

IN THE COURT OF COMMON PLEAS OF 

CUMBERLAND COUNTY, PENNSYLVANIA 

COMMONWEAL TH 

Circulated 10/10/2017 04:06 PM
-2- 

I. Facts 

. In December 2013, the victim, J.W., began a romantic relationship with the 

Defendant, Robert Jackson, whom she had met online. In September 2014, she 

unilaterally ended the relationship. Despite the end of the relationship, the Defendant 

would not stop contacting the victim by phone and social media forcing her to block him 

electronically on all platforms. All this notwithstanding, on October 21, the Defendant 

showed up at the victim's house unannounced and uninvited, pushed his way in and 

pressured the victim into a discussion about their relationship. Ultimately, she 

convinced him to leave, which he did without harming her, though he was extremely 

angry she had not permitted him to stay overnight. 

Ten days later, on Halloween night, the victim was alone in her home getting 

ready to go out with friends. There was a knock at her door and, again, it was 

Defendant arriving uninvited. She told him to leave and refused to allow him inside. 

However, Defendant begged and pleaded that he only wanted to speak to her for five 

minutes. Eventually, the victim opened the door and the Defendant entered with a gun 

drawn which he put to her head. She screamed and he pushed her inside the house. 

He struck her in the face with his hand knocking her to the floor. With the gun held to 

her head, he said, "I'm going to kill you, bitch, and I'm going to kill myself." Notes of 

Testimony, December 14, 15, 16, and 17 at 66 (hereafter N.T. at_). The Defendant 

then grabbed the.victim by her hair and pulled her across the floor into her bedroom 

while she begged for her life. 

Once in the bedroom, the Defendant closed the door and pointed the gun at the 

victim. As he forced the victim to take her clothes off, he taunted her by tracing the 

CP-21-CR-3688-2014 
-3- 

point from the laser scope of the gun over various parts of her body. He demanded she 

perform oral sex on him and threatened that if she failed to comply her children would 

never see her again. During these threats the Defendant removed the jacket he was 

wearing but kept his clothes on while he had his penis out and was masturbating. The 

Defendant began counting out loud threatening that if the victim did not comply with his 

demands by the time he reached 1 O he would kill her. In fear for her life and against her 

will, the victim complied, and performed oral sex on the Defendant. During the entire 

time she was being forced to have the Defendant's penis in her mouth, he had the gun 

pressed against her head. 

After a period of time, the Defendant forced the victim onto her bed and 

penetrated her vaginally. He was not wearing a condom and ejaculated almost 

immediately. He then attempted to penetrate her anally but, in pain, she screamed and 

jumped away. At that moment, the Defendant's demeanor suddenly changed. With 

seeming remorse, he said he couldn't believe he hit her and raped and that he could not 

go to jail. Still in fear for her life, as the Defendant remained armed, the victim told him 

that she would never tell anyone what happened and tried to convince him to consider 

his love for his children and just to leave peacefully. 

In an apparent attempt to explain his actions and state of mind, the Defendant 

then forced the victim to read out loud entries from his personal journal that were stored 

on his cellular phone. After, the victim finished reading the journal entries the 

Defendant professed his love for her repeatedly and then left. As a result of attack, the 

victim suffered facial bruising and fear for her life and safety and the safety of her 

children. 

CP-21-CR-3688-2014 
-4- 

In extreme distress and afraid the Defendant may return, the victim's first 

concern was for her two children who were out with friends. She left to pick up her 

children and took them to the home of a close friend. On the ride over, she called 911 

to report the attack. After leaving her children with her friend, the victim proceeded to 

the East Pennsboro Police Department. The court notes that at trial defense counsel 

attacked some of the victim's recollection of the precise series of events that would 

follow. Regardless, she credibly testified that in the ensuing hours she made a 

statement to police, had a rape kit examination performed on her at Harrisburg Hospital, 

and then later went with an officer to inspect her house, 

Shortly thereafter, under the supervision of police, the victim made a recorded 

phone call to the Defendant where she confronted him about the attack. During the call 

he was apologetic and made several statements that could be construed as admissions. 

Police also discovered Defendant's coat at the scene of the crime. Further investigation 

revealed an iPad belonging to the Defendant that contained a file entitled "Journal" that 

contained statements similar to those included in the digital journal the victim was 

forced to read on the night of the attack. Police also discovered a handgun with a laser 

scope matching the one used in the attack in the Defendant's home in West Virginia. 

Cell phone tower location records for the Defendant's phone also corroborated the 

victim's timeline of events and confirmed the Defendant's presence in the vicinity of the 

victim's home at the time of the attack. Finally, the rape kit examination and DNA 

analysis resulted in a match for the Defendant's semen. 

Based on these facts, the Defendant was arrested and charged with numerous 

sexual offenses. Following a jury trial, he was convicted of the majority of those 

CP-21-CR-3688-2014 
-5- 

Rule 803. Exceptions to the Rule Against HearsayRegardless of Whether the Declarant Is Available as a 

Witness 

relevant here: 

Pa.RE. 802. However, Rule 803 provides several exceptions to the hearsay rule, 

matter asserted. Pa.RE. 801(c). Generally, hearsay testimony is inadmissible at trial. 

Hearsay is an out-of-court statement offered in evidence to prove the truth of the 

Commonwealth v. Hutchinson, 811 A.2d 556, 561 (Pa. 2002). 

(1) the error did not prejudice the defendant or the prejudice 

was de minimis; (2) the erroneously admitted evidence was 

merely cumulative of other untainted evidence which was 

substantially similar to the erroneously admitted evidence; or 

(3) the properly admitted and uncontradicted evidence of 

guilt was so overwhelming and the prejudicial effect of the 

error was so insignificant by comparison that the error could 

not have contributed to the verdict. 

an erroneous evidentiary ruling, that mistake will not justify a new trial if it constitutes 

harmless error. Harmless error exists where: 

Commonwealth v. Mitchell, 902 A.2d 430, 452 (Pa. 2006). Even if a trial court makes 

will be reversed only upon a showing that the trial court clearly abused its discretion." 

'The admission of evidence is within the sound discretion of the trial court and 

constituted impermissible hearsay. 

the recorded phone conversation between himself and the victim on the basis that it 

The Defendant argues the court erred by denying his pre-trial motion to exclude 

A. Phone Conversation 

II. Discussion 

Correctional Facility. 

offenses and was sentenced to an aggregate sentence of 20.5 to 43 years in a State 

) 

CP-21-CR-3688-2014 
-6- 

Pa.R.E(803)(25)(E) (Explanatory Comment). 

The statements in this exception were traditionally, and in prior versions of both the Federal Rules 

of Evidence and the Pennsylvania Rules of Evidence, called admissions, although in many cases 

the statements were not admissions as that term is employed in common usage. The new 

phrase used in fhefederal rules--an opposing party's statement--more accurately describes these 

statements and is adopted here. 

1 The Explanatory Comment to Rule 803(25)(E) provides: 

of "[a] statement of the declarant's then-existing state of mind (such as motive, intent or 

are several exceptions to the hearsay doctrine. The Rules provide for the admissibility 

admissible to show the Defendant's present state of mind. As previously recited there 

be admitted into evidence on the grounds that it is hearsay and contains no admissions 

that would make it otherwise admissible. The Commonwealth argued that it was 

Next, the Defendant argues the court erred in allowing the contents of his diary to 

B. Diary 

recording of the telephone call. 

permit them to be offered against the Defendant. This court did not err in admitting the 

Defendant the day after his brutal attack upon her constitute sufficient admissions to 

N.T. at 7. These comments, considered in the context of the victim confronting the 

said, "I never meant to hurt you. I'll write you a letter and explain everything to you." 

can be characterized as admissions. When confronted by the victim, the Defendant 

During the taped conversation, the Defendant made numerous statements that 

(25) An Opposing Party's Statement. The statement is 

offered against an opposing party and: 

(A) was made by the party in an individual or representative 

capacity[.] 

Pa.RE. 803(25)(E).1 

* * * 

The following are not excluded by the rule against hearsay, 

regardless of whether the declarant is available as a witness: 

CP-21-CR-3688-2014 
-7- 

An allegation that the verdict is against the weight of the 

evidence is addressed to the discretion of the trial court. Our 

Supreme Court has explained that 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. A motion for new trial on the 

grounds that the verdict is contrary to the weight of the 

evidence, concedes that there is sufficient evidence to 

sustain the verdict. Thus, the trial court is under no obligation 

to view the evidence in the light most favorable to the verdict 

winner. A new trial should be awarded when the jury's 

verdict is so contrary to the evidence as to shock one's 

sense of justice and the award of a new trial is imperative so 

that right may be given another opportunity to prevail. 

Stated another way, . . . this Court has explained that the 

evidence must be so tenuous, vague and uncertain that the 

verdict shocks the conscience of the court. 

Superior Court has stated: 

motion based on the jury's verdicts being against the weight of the evidence. Our 

The Defendant contends that the court erred when it denied his post-sentence 

C. Weight of the Evidence 

admissible and relevant. 

state of mind and motive on the night of the crime. Accordingly, the evidence was both 

hours before she was attacked by the Defendant are clearly relevant to establishing his 

Outcome unknown." N.T. at 10. Obsessive diary entries addressed to the victim written 

get back together with her. It also included an ominous ending: "Journal complete. 

Here, the diary included an entry written just before the assault occurred 

addressed to the victim describing how the Defendant missed the victim and wanted to 

bodily health) .... Pa.RE. 803(3). 

plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or 

CP-21-CR-3688-2014 
-8- 

Commonwealth v. Sullivan, 820 A.2d 795, 805-06 (Pa. Super. 2003) (citations and 

internal quotation marks omitted). 

At the hearing on the Defendant's Post-sentence Motion, his counsel argued that 

the jury's verdict was against the weight of the evidence because even though the 

alleged attack occurred on Halloween night in a crowded residential neighborhood, a 

police canvass of the area revealed no witnesses who heard the attack. He also argued 

that despite the vlctlm's account of the attack, there were no visible extreme physical 

injuries on her body to substantiate her claims. 

These allegations are insufficient to shock the court's conscience and compel us 

to order a new trial. First, whether people who may have been outside of the victim's 

home heard the attack is really not relevant. Next, the Defendant raped the victim at 

gunpoint thereby using the weapon to force her compliance which would help explain 

the lack of extreme physical injuries. Also, as noted by the nurse's testimony at trial, 

lack of evidence of physical trauma is not necessarily evidence that a rape did not 

occur. Finally, here was DNA evidence showing the Defendant had had intercourse 

with the victim and his coat was left at the scene of the crime. Based on these facts and 

all the evidence introduced at trial the court is well-satisfied that the jury's verdicts are 

not against the weight of the evidence. 

D. Disproportionate Sentence 

The Defendant complains that the court erred by sentencing his 

disproportionately to the crime for which he was convicted. Following the Defendant's 

convictions, the court sentenced him to an aggregate sentence of not less than 20 and 

one half years to not more than 43 years. At the hearing on the Defendant's postCP-21-CR-3688-2014 
-9- 

sentence motion, his counsel argued that this court's judgment of sentence was too 

harsh as it ignored the protective needs of the community as the Defendant only had 

one victim rather than several. Counsel also noted that as the Defendant was 50 years 

old, such a sentence would amount to a life sentence. Counsel also sought to minimize 

the degree of physical violence employed by the Defendant during the assault. 

As the Commonwealth noted, the sentence imposed is a standard range 

sentence and in light of the horrible violence inflicted on the victim, it was wholly 

appropriate. This court agreed and stated, "a lesser sentence would depreciate the 

seriousness of the crimes involved." In re Transcript of Proceedings Motion to Modify 

Sentence, May 23, 2016 at 7. The court submits that this standard range sentence is 

not disproportionate to the Defendant's crimes. 

E. Sufficiency of the Evidence - Aggravated Assault (Causing Bodily Injury with a 

Deadly Weapon) 

The Defendant argues the court erred by denying his motion for judgment of 

acquittal pertaining to the sufficiency of the evidence for the aggravated assault - 

causing bodily injury with a deadly weapon count. 

"The standard of reviewing the sufficiency of the evidence is whether the 

evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed 

in the light most favorable to the Commonwealth as the verdict winner, is sufficient to 

support all the elements of the offense beyond a reasonable doubt." Commonwealth v. 

Strouse, 909 A.2d 368, 368-69 (Pa. Super. 2006). "The Commonwealth need not 

preclude every possibility of innocence or establish the defendant's guilt to a 

mathematical certainty." Commonwealth v. Brotherson, 888 A.2d 901, 904 (Pa. Super. 

~ CP-21-CR-3688-2014 
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with a deadly weapon is supported by substantial evidence. 

role as fact-finder, the jury's verdict of guilty for aggravated assault - cause bodily injury 

bruising, some harm occurred. On these facts and allowing full deference to the jury's 

suffered bruising on her face; though it is not totally clear what contact caused the 

the assault the Defendant forcefully pressed the gun against her head and that she 

the court were to reach this issue on the merits, the victim credibly testified that during 

raising it in his concise statement of matter complained of on appeal. Further, even if 

reevaluate its previous decision. The Defendant cannot now revive his objection by 

failed to raise this issue in any way, thus depriving the court the opportunity to 

an issue to be handled post trial. However, in his post-sentence motion, the Defendant 

acquittal on this count, which the court denied, noting at the time that this could present 

First, this issue is waived. At the close of the case, the Defendant moved for 

substantial pain." 18 Pa.C.S. §2301. The statutory definition of deadly weapon 

includes, "(a]ny firearm, whether loaded or unloaded .... " Id. 

knowingly cause[dJ bodily injury to another with a deadly weapon ... " 18 Pa.C.S. § 

2702(a)(4). Bodily injury is defined asan "[iJmpairment of physical condition or 

the Commonwealth must prove the Defendant "attempt[ed] to cause or intentionally or 

To establish aggravated assault- causing bodily injury with a deadly weapon, 

omitted). 

evidence." Commonwealth v. Sanchez, 36 A. 3d 24, 39 (Pa. 2011) (internal citations 

the credibility of witnesses, and may choose to believe all, part, or none of the 

2005). "The finder of fact-here, the jury-exclusively weighs the evidence, assesses 

. CP-21-CR-3688-2014 
-11- 

·ocr o 6 201s 

Copies mailed on _ 

Eric Delp, Esquire 

For Defendant 

Charles J. Volkert, Jr., Esquire 

For the Commonwealth 

. 0··· ,.,..· .- .---· - .. · ,· .·· . 

~

. -~.·-'"~_--·· :;;~ .-· 

Albert H. Masland, J. 

By the Court, 

sentence should be affirmed in all respects. 

For all these reasons, this jury's verdicts of guilty and this court's judgment of 

Ill. Conclusion 

\ 

I .. 

CP-21-CR-3688-2014