J-S39028-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

WAYNE ALLEN GRAY, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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

BEFORE: 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 postsentence 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. 

2 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 postsentence 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 postsentence 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 afterdiscovered 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 postsentence 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[.]

10.Whether the [t]rial [c]ourt’s imposition of consecutive 

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

sentence. 

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 

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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 3211⁄2 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, 

3211⁄2 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, commonsense’ 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 “1⁄2” 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 1⁄2 simply conveys that the 

two-unit structure was split into equal halves, then specifying “3211⁄2 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: 

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.

Id. at 141.

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

Detective Harden.5

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-yearold 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 
J-S39028-22

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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 applicable legal standard, we find that the

Commonwealth presented sufficient evidence[.]

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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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. § 

9711(c)).

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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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.
J-S39028-22

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Judgment of sentence vacated. Case remanded with instructions to hold 

evidentiary hearing consistent with this memorandum. Jurisdiction 

relinquished. 

President Judge Panella joins this Memorandum.

Judge Nichols concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/21/2023