J-S45004-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

SHAWN WILLIAMS, 

 Appellant No. 2388 EDA 2012 

Appeal from the Judgment of Sentence July 11, 2012

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0012558-2010 

BEFORE: BOWES, WECHT, and FITZGERALD,*

JJ.

MEMORANDUM BY BOWES, J.: FILED AUGUST 28, 2014 

 Shawn Williams appeals from the judgment of sentence of fifteen to 

thirty years imprisonment that was imposed after he was convicted at a 

nonjury trial of rape, unlawful contact with a minor, unlawful restraint, and 

endangering the welfare of a child. We affirm. 

 The victim, A.H., was thirteen years old on August 17, 2010, the day 

of the attack. The evening of August 16, 2010, A.H. was at the Philadelphia 

home her sister, Monica, shared with her husband, Appellant and their baby 

daughter. At approximately 11:00 p.m., Appellant and Monica began to 

argue, and about one hour later, Appellant evicted Monica from the house. 

She was not permitted to take either the baby or her sister with her. 

____________________________________________ 

*

 Former Justice specially assigned to the Superior Court. 
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 A.H. was watching television with her niece. Shortly after Monica left, 

A.H. put her niece to bed. As A.H. was returning to the first floor to turn off 

the television, Appellant came into the hallway. A.H. described what 

occurred next, as follows. Appellant “grabbed my right arm and had pulled 

me into the [bed]room, and he put both hands on my shoulder[s] and 

pushed me on the bed.” N.T. Trial, 5/24/11, at 20. A.H. told him to “get 

off” and pushed him away. Id. at 21. Appellant rebuked the child’s attempt 

to avoid the attack. A.H. testified that she refused Appellant’s demand to 

remove her clothing, so Appellant “took them off for me. I kept trying to 

pull them up.” Id. at 22. Appellant inserted his finger into the victim’s 

vagina, and then placed his mouth on her vagina. A.H. continued to push 

and scratch Appellant and tell him to get off her. Appellant ignored A.H., 

and then inserted his penis into her vagina. A.H. said, “It hurt and it was a 

lot of pressure.” Id. at 29. A.H. reported that the pain from Appellant’s 

penis was a nine on a scale of one to ten. Id. at 46. Appellant also placed 

his hands and mouth on her breasts. At that point, Appellant placed a pillow 

over A.H.’s face, and she ceased screaming at him. 

 When Appellant stopped his assault, A.H. dressed herself and retrieved 

her niece, who had been crying and screaming during the crime. She went 

downstairs with the child and began to watch television. Then, Appellant 

“came downstairs and said if I tell anybody, he’s going to kill me and he said 

that he’s going to kill my family.” Id. at 30-31. Eventually, A.H. fell asleep 

in her niece’s room. 
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A.H.’s mother came to pick her up at approximately 7:00 a.m. on 

August 17th. After Appellant left the house, A.H. immediately told her 

mother about the assault, and they went to the police station. Police 

transported the victim to the hospital, where she was physically examined. 

Her vagina still hurt and she “couldn’t use the bathroom.” Id. at 35. A.H. 

reported that, at the hospital, the pain continued to be a nine. Id. at 47. 

 There were various stipulations entered into evidence after A.H. 

testified. At the hospital, “doctors found two bilateral lacerations that were 

.5 centimeters a piece on the complainant’s labia[.]” Id. at 74. A rape test 

kit was administered at the hospital, the hospital gave the kit to the Special 

Victims’ Unit, and the kit was lost by the unit. Thus, there were no results 

from the rape kit admitted into evidence. The victim’s clothing had no fluids 

or hair upon which a DNA test could be performed. Appellant’s sheets were 

taken from the residence but not tested. 

 Finally, it was stipulated that two police officers proceeded to 

Appellant’s residence and waited in their car to watch the house. “They 

observed the defendant walk up to the front porch of the property, look 

around, and then begin walking” away. Id. at 74. Police followed Appellant 

in their car, and Appellant began to run away. He was apprehended after a 

brief pursuit. 

Based on this evidence, Appellant was convicted of the abovedescribed charges. Appellant was sentenced to ten to twenty years 

incarceration for rape and a consecutive term of five to ten years in jail for 
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unlawful contact with a minor. Concurrent sentences were imposed on the 

other two crimes at issue herein. Appellant filed a motion to modify his 

sentence. This appeal followed its denial. Appellant raises the following 

issues on appeal: 

A. Did the trial court err when finding that Appellant’s waiver of 

the right to trial by jury was knowing, voluntary, and intelligent? 

B. Was the evidence sufficient to sustain any of the guilty 

verdicts entered by the trial court? 

C. Were the guilty verdicts entered by the trial court, against the 

great weight of the evidence where the trial court did not provide 

findings of fact to demonstrate that the court’s verdicts were 

based on a foundation of reason and not caprice or partiality? 

D. Did the trial court . . . abuse its discretion in imposing an 

excessive sentence? 

Appellant’s brief at 5. 

Since Appellant would be entitled to discharge rather than a new trial if 

he prevails in his sufficiency challenges, we address his second issue at the 

outset.1

 See Commonwealth v. Nypaver, 69 A.3d 708 (Pa.Super. 2013). 

We review a sufficiency argument pursuant to the following principles: 

The standard we apply when reviewing the sufficiency of 

the evidence is whether viewing all the evidence admitted at trial 

in the light most favorable to the verdict winner, there is 

sufficient evidence to enable the fact-finder to find every 

element of the crime beyond a reasonable doubt. In applying 

____________________________________________ 

1

 We reject the Commonwealth’s assertion that his sufficiency challenges 

were waived. Appellant included a challenge to the sufficiency of the 

evidence in his Pa.R.A.P. 1925(b) statement, and the trial court addressed 

the sufficiency of the evidence supporting the verdict. 
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the above test, we may not weigh the evidence and substitute 

our judgment for the fact-finder. In addition, we note that the 

facts and circumstances established by the Commonwealth need 

not preclude every possibility of innocence. Any doubts

regarding a defendant's guilt may be resolved by the fact-finder 

unless the evidence is so weak and inconclusive that as a matter 

of law no probability of fact may be drawn from the combined 

circumstances. The Commonwealth may sustain its burden of

proving every element of the crime beyond a reasonable doubt 

by means of wholly circumstantial evidence. Moreover, in 

applying the above test, the entire record must be evaluated and 

all evidence actually received must be considered. Finally, the 

trier of fact while passing upon the credibility of witnesses and 

the weight of the evidence produced is free to believe all, part or 

none of the evidence. Furthermore, when reviewing a

sufficiency claim, our Court is required to give the prosecution 

the benefit of all reasonable inferences to be drawn from the 

evidence. 

Commonwealth v. Slocum, 86 A.3d 272, 275 (Pa.Super. 2014) (citation 

omitted). 

 Appellant was convicted of rape by forcible compulsion. A person 

commits that offense if he engages in “sexual intercourse with a complainant 

[b]y forcible compulsion.” 18 Pa.C.S. § 3121(a)(1). Forcible compulsion is 

defined as “[c]ompulsion by use of physical, intellectual, moral, emotional or 

psychological force, either express or implied.” 18 Pa.C.S. § 3101. Appellant 

does not contest that A.H.’s testimony established that he inserted his penis 

into her vagina by force. He challenges that conviction by maintaining that 

A.H. “was not being truthful[.]” Appellant’s brief at 21. Appellant likewise 

concedes that the elements of unlawful contact with a minor were established 
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by the Commonwealth.2

 Appellant’s brief at 23. To challenge this conviction, 

he again levels an attack on the victim’s credibility. He notes inconsistencies 

between A.H.’s trial and preliminary hearing testimony about the bedroom in 

which she was attacked, the number of bedrooms in the house, and whether 

or not she called her mother following the attack. 

Thus, Appellant’s attacks on the sufficiency of the evidence supporting 

the rape and unlawful contact offenses are actually challenges to the weight 

rather than sufficiency of the evidence. Commonwealth v. W.H.M., Jr., 

932 A.2d 155, 160 (Pa.Super. 2007) (defendant’s position that victim’s 

version of events was not worthy of belief related to “weight, not sufficiency, 

of the evidence”). Likewise, inconsistencies between the witness’s trial and 

preliminary hearing testimony relate to the weight of the evidence, which 

____________________________________________ 

2

 The offense of unlawful contact with a minor is outlined in 18 Pa.C.S. 

§ 6318(a), which provides in pertinent part: 

(a) Offense defined.--A person commits an offense if he is 

intentionally in contact with a minor, or a law enforcement 

officer acting in the performance of his duties who has assumed 

the identity of a minor, for the purpose of engaging in an activity 

prohibited under any of the following, and either the person 

initiating the contact or the person being contacted is within this 

Commonwealth: 

(1) Any of the offenses enumerated in Chapter 31 

(relating to sexual offenses). 

18 Pa.C.S. § 6318(a)(1). Rape is an offense set forth in chapter 31 of the 

Crimes Code. 
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also is for the factfinder to determine. Commonwealth v. Stays, 70 A.3d 

1256 (Pa.Super. 2013). 

Appellant’s position as to his rape and unlawful contact convictions fails 

since it was solely within the province of the trial court to determine A.H.’s 

credibility. Commonwealth v. Page, 59 A.3d 1118, 1130 (Pa.Super. 2013) 

(“A determination of credibility lies solely within the province of the 

factfinder.”) Commonwealth v. Blackham, 909 A.2d 315, 320 (Pa.Super. 

2006) (“The weight of the evidence is exclusively for the finder of fact, which 

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

credibility of the witnesses. . . . It is not for this Court to overturn the 

credibility determinations of the fact-finder.”). 

Appellant also suggests that “the physical evidence did not support 

complainant’s allegations.” Appellant’s brief at 21, 22. Initially, we observe 

that Appellant is mistaken since the victim had two lacerations on her labia 

when she was examined following the incident. While Appellant makes an 

obtuse argument that the Commonwealth did not prove that the lacerations 

were caused by an adult male penis, this position is a non sequitur. The 

lacerations were indicative of an assault on the victim’s vaginal area and 

supported her allegations. 

Secondarily, we note that the physical evidence neither supported nor 

undermined A.H.’s testimony. The results of the rape kit were not available 

since the kit was lost, and there was no other DNA testing conducted. The 
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victim’s clothing was examined but did not have any residue of a bodily fluid 

or a hair that could be tested, which was consistent with A.H.’s testimony 

that Appellant pulled her pajama bottoms down to her ankles before she was 

raped. 

Finally, we observe that it is well established that “the uncorroborated 

testimony of a sexual assault victim, if believed by the trier of fact, is 

sufficient to convict a defendant.” Commonwealth v. Andrulewicz, 911 

A.2d 162, 166 (Pa.Super. 2006) (quoting Commonwealth v. Charlton, 902 

A.2d 554, 562 (Pa.Super. 2006)). Thus, the fact that there was no physical 

evidence, other than the lacerations, to support A.H.’s testimony does not 

render the evidence insufficient to support the rape and indecent assault 

convictions. 

 Appellant next challenges his unlawful restraint conviction.3

 A person 

commits the crime of unlawful restraint if he “restrains another unlawfully in 

circumstances exposing him to risk of serious bodily injury.” 18 Pa.C.S. 

§ 2902(a)(1), (b)(1). In connection with this offense, Appellant maintains 

that the record failed to establish that A.H. sustained serious bodily injury 

after being forcibly raped. As noted by the Commonwealth, Appellant 

____________________________________________ 

3

 Appellant raises some of the same arguments with respect to the unlawful 

restraint and child endangerment convictions as he did regarding the rape 

and unlawful contact offenses. Our resolution of those positions as to the 

rape and unlawful contact crimes applies with equal force to any identical 

position that Appellant raises to the unlawful restraint or child endangerment 

charges. 
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misconstrues the elements of this crime. The victim does not have to be 

seriously injured to support an unlawful restraint conviction; rather, the 

perpetrator must expose the victim to a risk of serious bodily injury. 

In Commonwealth v. Byers, 502 A.2d 1324 (Pa.Super. 1986), we 

noted that unlawful restraint is committed when a defendant restrains 

another and exposes the victim to a risk of serious bodily injury. We 

continued: “Clearly forcible rape presents the possibility of serious bodily 

injury to the victim.” Id. at 1331. We more specifically delineated in 

Commonwealth v. Kerrigan, 920 A.2d 190 (Pa.Super. 2007), that a victim 

of unlawful intercourse is exposed to a risk of numerous venereal diseases as 

well as pregnancy. Hence, we reject Appellant’s argument that he did not 

expose A.H. to a risk of serious bodily injury when he forcibly raped the 

victim. 

 Appellant also assails his child endangerment conviction. The elements 

of that offense are set forth in 18 Pa.C.S. § 4304 (a)(1): “A parent, guardian 

or other person supervising the welfare of a child under 18 years of age, or a 

person that employs or supervises such a person, commits an offense if he 

knowingly endangers the welfare of the child by violating a duty of care, 

protection or support.” Herein, Appellant suggests that the evidence did not 

“demonstrate the Appellant was supervising or otherwise caring for the 

complainant.” Appellant’s brief at 26. 
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 We disagree. The victim was thirteen years old, and the offense 

occurred while she was staying overnight in Appellant’s residence. The 

evidence was that Appellant evicted the only other adult in the home, Monica, 

and refused to allow Monica to take her sister. Hence, the evidence was 

sufficient to establish that Appellant was the adult in charge and was 

supervising A.H. when he raped her. See Commonwealth v. Trippett, 932 

A.2d 188, 195 (Pa.Super. 2007). 

We now address Appellant’s first position, which is that he did not 

properly waive his right to a jury trial. Pa.R.Crim.P. 620 provides: 

In all cases, the defendant and the attorney for the 

Commonwealth may waive a jury trial with approval by a judge 

of the court in which the case is pending, and elect to have the 

judge try the case without a jury. The judge shall ascertain from 

the defendant whether this is a knowing and intelligent waiver, 

and such colloquy shall appear on the record. The waiver shall 

be in writing, made a part of the record, and signed by the 

defendant, the attorney for the Commonwealth, the judge, and 

the defendant's attorney as a witness. 

The three fundamentals of a jury trial are “(a) the jury would be 

chosen from members of the community thereby producing a jury of his 

peers; (b) any verdict rendered by a jury must be unanimous, that is, all 

twelve jurors must agree before they can return a verdict of guilty; and (c) 

he would be permitted to participate in the selection of the jury.” 

Commonwealth v. Mallory, 941 A.2d 686, 690 (Pa. 2008). 

The colloquy conducted by the trial court under Pa.R.Crim.P. 620 does 

not have to include an on-the-record colloquy concerning the fundamentals 
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of a trial by jury. Mallory, supra. A written colloquy will suffice. Id. 

Herein, Appellant signed an extensive written document providing a detailed 

explanation of all the rights that he was waiving by proceeding to a non-jury 

trial. That document encompassed the three concepts in question. 

Additionally, Appellant specifically signed yes to the following paragraph: 

Do you understand that if you are tried by a jury you cannot be 

convicted unless all twelve jurors are convinced beyond a 

reasonable doubt that you are guilty? This is because a jury 

verdict is required by law to be unanimous which means that all 

twelve jurors must agree on the verdict, thus if all twelve vote 

“guilty,” the verdict is “guilty” and if all twelve vote “not guilty” 

the verdict is “not guilty”. 

Written Jury Trial Waiver Colloquy, 5/24/11, at ¶ 35. 

The written waiver was supplemented by an oral colloquy conducted 

by defense counsel in front of the trial judge that actually delineated two of 

the three fundamental rights involved in a jury trial. 

THE COURT: I have in front of me a written colloquy 

waiver form that has been completed, signed by your client. 

Would you do a brief oral colloquy referencing this form that you 

went over with him attached. 

MR. GAY [defense counsel]: Mr. Williams, you signed a 

form indicating to the Court that you're aware of your right to a 

jury trial, that you're choosing today to proceed by way of 

nonjury trial and have the Judge decide this case. Do you 

understand that? 

THE DEFENDANT: Yes. 

 

MR. GAY: Did you and I discuss that prior to you appearing 

here today? 

THE DEFENDANT: Yes. 
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MR. GAY: Well, in order for someone to give up their right 

to a jury trial, of course, they need to be informed exactly what 

is involved in a jury trial, and so I'm going to go over some of 

the things on that form and ask, first of all, did you and I go 

over that form? 

THE DEFENDANT: Yes. 

MR. GAY: And did you place your initials on each page of 

this form and sign on the fourth page? 

THE DEFENDANT: Yes. 

MR. GAY: Now, if I were to ask each one of those 

questions that were on that form to you again, would your 

answers be the same? 

THE DEFENDANT: Yes. 

MR. GAY: Now, you understand that you do have a 

constitutionally guaranteed right to a jury trial? 

THE DEFENDANT: Yes. 

MR. GAY: That's guaranteed by [the] federal Constitution 

as well as [the] Pennsylvania Constitution; you understand that? 

 

THE DEFENDANT: Yes. 

MR. GAY: If we were to proceed by way of jury trial, we 

would bring approximately 40 people selected at random into 

this courtroom, and you and I and the District Attorney would go 

through those people to pick 12 people plus two alternates to be 

on the jury; you understand that? 

THE DEFENDANT: Yes. 

MR. GAY: You understand that the reason that you would 

have the two alternates is just in case one of the original 12 

jurors was unable to sit for the duration of the trial, then we 

would have one of those alternates fill in for them, understand? 

THE DEFENDANT: Yes. 
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MR. GAY: During the jury selection process, do you 

understand that you would have an unlimited number of strikes 

for what we call cause, if you could prove someone could not be 

fair in this particular case? 

THE DEFENDANT: Yes. 

MR. GAY: You also understand that you also have seven 

peremptory [strikes] that you can remove prospective jurors 

from the jury panel if you're not comfortable with them as a 

juror, but the Court has decided that they could be fair; you 

understand? 

THE DEFENDANT: Yes. 

MR. GAY: And you understand that you could use those 

peremptory challenges as long as you're not discriminating 

against someone on the basis of race, religion, national [origin.] 

MR. GAY: Have you ever been diagnosed with a mental 

illness of any sort? 

THE DEFENDANT: No. 

MR. GAY: Are you taking any medication today? 

THE DEFENDANT: No. 

MR. GAY: I know this is a silly question, but are you under 

the influence of any alcohol or drugs as we're here in court 

today? 

THE DEFENDANT: No. 

MR. GAY: So do you understand everything that I have

explained to you so far? 

THE DEFENDANT: Yes. 

MR. GAY: Any questions for either me, the District 

Attorney or Judge Trent? 

THE DEFENDANT: No. 
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THE COURT: All right. I'm satisfied that the waiver is 

knowing, intentional and voluntary. 

N.T. Trial, 5/24/11, at 6-11. 

 Thus, the only fundamental right not encompassed by the oral colloquy 

was that a jury verdict must be unanimous. Appellant’s allegation is that his 

jury-trial waiver was defective in that trial counsel, during the oral colloquy, 

forgot to inform Appellant that a jury verdict must be unanimous. However, 

that omission was vitiated by the fact that Appellant was told about that 

concept in the written colloquy. Commonwealth v. Smith, 450 A.2d 973, 

974 (Pa. 1982) (“[A]lthough the [oral] colloquy did not include an 

explanation of the unanimity and defendant-participation requirements [for a 

jury trial], the written form signed by respondent, his counsel, and the court 

states that respondent was indeed fully aware of these requirements. This 

form must be accorded prima facie validity.”). Hence, no relief is due. 

 Appellant also raises a challenge to the weight of the evidence. We 

note that, contrary to the Commonwealth’s position, this challenge was 

preserved since, after he was convicted and prior to sentencing, Appellant 

filed a motion for extraordinary relief raising the weight issue. Pa.R.Crim.P. 

607 (“A claim that the verdict was against the weight of the evidence shall 

be raised with the trial judge in a motion for a new trial: (1) orally, on the 

record, at any time before sentencing; (2) by written motion at any time 

before sentencing; or (3) in a post-sentence motion.”). 
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 Our standard of review in this context is extremely limited and wellensconced: 

 A motion for a new trial based on a claim that the verdict is 

against the weight of the evidence is addressed to the discretion 

of the trial court. [Commonwealth v.] Widmer, 744 A.2d 

[745,] 751–52 [Pa. 2000]; Commonwealth v. Brown, 538 Pa. 

410, 648 A.2d 1177, 1189 (1994). A new trial should not be 

granted because of a mere conflict in the testimony or because 

the judge on the same facts would have arrived at a different 

conclusion. Widmer, 744 A.2d at 752. Rather, “the role of the 

trial judge is to determine that ‘notwithstanding all the facts, 

certain facts are so clearly of greater weight that to ignore them 

or to give them equal weight with all the facts is to deny 

justice.’” Id. at 320, 744 A.2d at 752. It has often been stated 

that “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.” Brown, 648 A.2d at 1189. 

An appellate court's standard of review when presented with a weight 

of the evidence claim is distinct from the standard of review applied by the 

trial court: 

 Appellate review of a weight claim is a review of 

the exercise of discretion, not of the underlying 

question of whether the verdict is against the weight 

of the evidence. Brown, 648 A.2d at 1189. 

Because the trial judge has had the opportunity to 

hear and see the evidence presented, an appellate 

court will give the gravest consideration to the 

findings and reasons advanced by the trial judge 

when reviewing a trial court's determination that the

verdict is against the weight of the evidence. 

Commonwealth v. Farquharson, 467 Pa. 50, 354 

A.2d 545 (1976). 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. 

Widmer, 744 A.2d at 753. 
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Commonwealth v. Antidormi, 84 A.3d 736, 758 (Pa.Super. 2014) 

(quoting Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013)). 

Appellant’s specific weight claim is: 

 The Trial Court in rendering its verdict of guilt at the time of 

trial, did not issue any findings of fact, or conclusions of law that 

would permit a reviewing court to adequately determine whether 

the verdict was based on a foundation of reason or whether it 

was based on prejudice, personal motivations, caprice or 

arbitrary actions. 

Appellant’s brief at 28. 

The fundamental flaw in this position is that there is no legal 

requirement that a trial court, acting as factfinder in a criminal proceeding, 

issue findings of fact and conclusions of law. Identical to a jury, the trial 

judge in a criminal proceeding merely issues a general verdict of guilt as to 

each offense charged against the defendant. 

Herein, the trial court “found the complainant’s testimony describing 

the sexual attack to be credible.” Trial Court Opinion, 11/13/13, at 6. 

Appellant’s weight argument largely rests on his testimony, which the court 

did not find “persuasive or credible.” Id. As outlined above, the trial judge, 

as factfinder was the sole arbiter of A.H.’s credulity as well as that of 

Appellant. Page, supra at 1130 (“A determination of credibility lies solely 

within the province of the factfinder.”); Blackham, supra at 320 (The 

weight of the evidence is exclusively for the finder of fact, which is free to 

believe all, part, or none of the evidence, and to assess the credibility of the 

witnesses. . . . It is not for this Court to overturn the credibility 
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determinations of the fact-finder.”). Given its credibility determinations in 

this case, we cannot find that the trial court erred in rejecting Appellant’s 

weight claim. 

Appellant also maintains that the convictions are in contradiction to 

the physical evidence. We have analyzed and rejected this position in 

connection with the sufficiency positions. Not only was there physical 

evidence to support the victim’s claims, in the form of vaginal area 

lacerations, there was no physical proof to controvert it. The physical 

evidence neither proved nor disproved the allegations herein. 

Appellant’s final challenge is to the discretionary aspects of the 

sentence imposed. We have articulated on numerous occasions that: 

Before this Court may reach the merits of a challenge to 

the discretionary aspects of a sentence, we must engage in a 

four part analysis to determine: (1) whether the appeal is 

timely; (2) whether Appellant preserved his issue; (3) whether 

Appellant's brief includes a concise statement of the reasons 

relied upon for allowance of appeal with respect to the 

discretionary aspects of sentence see Pa.R.A.P. 2119(f); and (4) 

whether the concise statement raises a substantial question that 

the sentence is appropriate under the sentencing code. If the 

appeal satisfies each of these four requirements, we will then 

proceed to decide the substantive merits of the case. 

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa.Super. 2013) (citation 

omitted). 

The appeal is timely. Appellant maintained in his post-sentence 

motion that his sentence was excessive “under the circumstances” and that 

the court “erred in sentencing the defendant to consecutive sentences.” 
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Motion for Reconsideration and/or Modification of Sentence, 7/20/14, at ¶¶ 

5, 7. Appellant’s Pa.R.A.P. 1925(b) statement averred the following, “The 

court sentenced [Appellant] to a sentencing range above the aggregate[d] 

range with no consideration for the mitigation [evidence] presented by 

Sentencing counsel and this Court’s sentence of fifteen to thirty year’s 

imprisonment was excessive.” Pa.R.A.P. 1925(b) Statement, 10/18/13, at ¶ 

11. 

Appellant’s brief contains a Pa.R.A.P. 2119(f) statement of reasons for 

allowance of appeal. Appellant’s brief at 18. Appellant’s Pa.R.A.P. 2119(f) 

statement, however, recites incorrect facts. He alleges that his prior record 

score was three, and that “a mandatory minimum sentence applied to 

Appellant’s conviction” for rape by forcible compulsion and the mandatory 

minimum was “a sufficient sentence absence any showing by either the 

Commonwealth or the trial court the need for an aggregated sentence.” 

Appellant’s brief at 18. In the body of his brief, Appellant at least corrects 

the error regarding his prior score. Appellant’s brief at 30. (“appellant’s 

prior record score of one, (1) was based in part on two prior convictions for 

simple assault and one prior conviction for REAP”). However, he again 

repeats the incorrect statement that the “conviction for Rape, with a guilty 

finding of forcible compulsion under the statutes mandated imposition of a 

mandatory minimum sentence ten, (10) to twenty, (20) years.” Id. 
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We are aware of no mandatory minimum sentence for rape by forcible 

compulsion, and § 3121 contains none. The outlined sentence of ten to 

twenty years imprisonment is not a mandatory minimum sentence; rather, it 

is the maximum sentence that can be imposed for rape by forcible 

compulsion. See 18 Pa.C.S. § 3121(a)(1) (rape by forcible compulsion is a 

first-degree felony); 18 Pa.C.S. § 1103(1) (maximum sentence for a firstdegree felony is twenty years in jail); 42 Pa.C.S. § 9756(b)(1) (“The court 

shall impose a minimum sentence of confinement which shall not exceed 

one-half of the maximum sentence imposed.”). 

The record indicates the following. Appellant’s sentence for rape by 

forcible compulsion resulted from imposition of a sentence that was above 

the guidelines and his consecutive sentence of five to ten years for unlawful 

contact was within the standard range. The sentences on the unlawful 

restraint and child endangerments offenses were imposed concurrently. The 

sentencing court had the benefit of a pre-sentence report and mental health 

evaluation. With Appellant’s prior record score of one, the aggravated range 

of the guidelines called for a minimum sentence of seven years. The 

sentencing court decided to exceed the guidelines on Appellant’s rape 

conviction due to “Appellant’s questionable rehabilitative potential, lack of 

remorse, and his dangerous propensity[.]” Trial Court Opinion, 11/13/13, at 

11. The sentence imposed on the unlawful contact conviction was within the 
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standard range since the unlawful contact charge was also graded as a firstdegree felony. 18 Pa.C.S. § 6318(b)(1). 

The trial court addressed the allegation raised in the Pa.R.A.P. 1925(b) 

statement, which was that the sentence on rape exceeded the guidelines 

ranges, was excessive, and was imposed without consideration of mitigating 

evidence. The court reported that the claim that it did not consider 

mitigation evidence was “patently false. The court certainly appreciated the 

evidence presented by the defense, including the testimony of numerous 

witnesses.” Trial Court Opinion, 11/13/13, at 11-12. It noted that it 

“adequately explained its reasons for deviating from the guidelines.” Id. at 

12. 

On appeal, Appellant does not aver that the court failed to justify its 

decision to deviate from the guidelines. Rather, it is clear that his sole 

challenge on appeal is to the fact that the sentence for unlawful contact was 

imposed consecutively to the sentence for rape. Appellant’s brief at 29-31. 

He suggests that the fifteen to thirty year sentence was manifestly excessive 

since the ten to twenty year term for rape was sufficient for the crimes in 

question. Appellant’s brief at 30. While Appellant did preserve a challenge 

to the consecutive nature of the sentence in his post-sentence motion, it is 

not contained in the Pa.R.A.P. 1925(b) statement. Even if the present 

sentencing issue had been contained in that statement, it would not present 

a substantial question permitting appellate review. We have observed that 
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“imposition of consecutive rather than concurrent sentences rests within the 

trial court's discretion.” Commonwealth v. Harvard, 64 A.3d 690, 

703 (Pa.Super. 2013). “Generally speaking, the court's exercise of 

discretion in imposing consecutive as opposed to concurrent sentences is not 

viewed as raising a substantial question that would allow the granting of 

allowance of appeal.” Commonwealth v. Gonzalez-Dejusus, 994 A.2d 

595, 598 (Pa.Super. 2010). 

A challenge to the court’s decision to sentence consecutively will raise 

a substantial question only if the aggregate sentence “appears upon its face 

to be an excessive level in light of the criminal conduct at issue in the case.” 

Commonwealth v. Dodge, 77 A.3d 1263, 1273 (Pa.Super. 2013) (citations 

omitted). Herein, Appellant forcibly raped a thirteen-year old child while she 

was under his care and then threatened to kill her and her family if she 

reported the crime. In light of the criminal conduct at issue herein, we 

cannot conclude that the aggregate sentence of fifteen to thirty years is 

excessive, on its face, and we find that Appellant failed to raise a substantial 

question as to the appropriateness of the sentence imposed. 

Commonwealth v. Mastromarino, 2 A.3d 581 (Pa.Super. 2010);

Gonzalez-Dejusus, supra; cf. Dodge, supra (substantial question was 

raised where aggregate sentence of forty years, seven months to eighty-one 

years and two months incarceration resulted from imposition of consecutive 

sentences on victimless property crimes). 
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Judgment of sentence affirmed. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 8/28/2014