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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF 

 : PENNSYLVANIA 

Appellee : 

: 

 v. : 

 : 

PAUL GRAHAM, : 

 : 

 Appellant : No. 567 WDA 2014 

Appeal from the Judgment of Sentence March 12, 2014

In the Court of Common Pleas of Washington County 

Criminal Division No(s).: CP-63-CR-0001468-2012 

BEFORE: GANTMAN, P.J., SHOGAN, and FITZGERALD,* JJ. 

MEMORANDUM BY FITZGERALD, J.: FILED JUNE 16, 2015 

Appellant, Paul Graham, appeals from the judgment of sentence 

entered in the Washington County Court of Common Pleas after he was 

convicted of numerous sexual offenses against a minor. He challenges the 

sufficiency and weight of the evidence, the legality of the trial court’s 

sentence, and the discretionary aspects of the court’s sentence. We affirm 

the convictions, find partial sentencing relief is due, and remand for 

resentencing. 

Appellant was charged with, inter alia, rape,1 four counts of 

involuntary deviate sexual intercourse,2 two counts of aggravated indecent 

 

*

 Former Justice specially assigned to the Superior Court. 
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assault,3 three counts of statutory sexual assault,4 three counts of indecent 

assault,5 and two counts of corruption of the morals of minors.6 The charges 

arose from allegations he molested his then nine-year-old niece (“the 

victim”) between 2003 and 2005. 

The trial court summarized the trial evidence as follows: 

A two-day jury trial began on September 16, 2013 

related to allegations of sexual assault committed by the 

Appellant against his niece when she was a child. At trial, 

the Commonwealth offered the testimony of the victim, 

her mother, and the arresting officer. 

 At the time of trial, the victim was nineteen years old. 

The Appellant married the victim’s aunt when the victim 

was approximately nine years old. The victim’s and

Appellant’s famil[ies] were close, and the Appellant acted 

as the victim’s babysitter while her parents worked. The 

Appellant babysat the victim and her brother “pretty much 

every day.” Sometimes she would stay the night at the 

Appellant’s residence and he would assist her with getting 

ready for school the next morning. The victim enjoyed 

spending time with her uncle, because he would play

games with her and “pretty much did whatever [the 

victim] wanted to do all the time.” 

 

1

 18 Pa.C.S. § 3121(a)(6) (subsequently amended and renumbered 18 

Pa.C.S. § 3121(c), effective Feb. 7, 2003). 

2

 18 Pa.C.S. § 3123(a)(6) (subsequently amended and renumbered as 18 

Pa.C.S. § 3123(c), effective Feb. 7, 2003). 

3

 18 Pa.C.S. § 3125(a)(7). 

4

 18 Pa.C.S. § 3122.1. 

5

 18 Pa.C.S. § 3126(a)(7). 

6

 18 Pa.C.S. § 6301(a)(1). 
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 However, in February of 2003, when the victim was 

nine years old, the Appellant began to sexually abuse the 

child. While wrestling, the victim stuck her tongue out at 

the Appellant, and he warned her not to do it again. When 

she did, the Appellant licked the inside of the victim’s 

mouth and her tongue. In another episode, the Appellant 

stuck his fingers in the victim’s mouth and made her suck 

on them. He also made the victim lift up her shirt while he 

touched and licked her nipples. Similar events happened 

multiple times. 

 The Appellant’s family eventually moved into the 

victim’s prior home, while the victim and her family resided 

three blocks away. The victim was close to ten years old 

at the time. The two residences were in walking distance 

to each other, and the Appellant continued to babysit the 

victim. 

 The two often spent time in the Appellant’s bedroom. 

The victim testified that Appellant once removed two 

vibrators from a dresser drawer. He placed them on the 

victim’s legs and explained that it was supposed to make 

her feel good. He then removed the victim’s pants and 

rubbed the objects “between [her] vagina and push[ed] 

them on [her] clitoris.” When asked if the objects

penetrated her vagina, the victim responded, “they went in 

between the lips.” 

 The Appellant would regularly remove the victim’s 

pants. In one episode he made the victim sit on top of his 

face and then placed his tongue in her vagina. Once, the 

Appellant made the victim bend over on all fours while he 

removed her pants. He then placed his finger into the 

victim’s anus. The act was extremely painful for the 

victim, who pulled away and ran to the bathroom. The 

victim was frightened when the event caused a “mucousy” 

discharge. The Appellant laughed and told the victim that 

it would be “okay.” 

 The Appellant also forced the victim to perform oral sex 

on him. The victim recalled gagging and pulling away. 

These sexual assaults occurred almost every time the 

victim was at the Appellant’s residence. On another 

occasion, the Appellant made the victim lay down on the 

bed, while he put his penis in between her thighs and then 
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ejaculated. The Appellant’s semen contacted the victim’s 

pants and thighs. Once, while sitting by the pool, the 

Appellant placed his fingers in the victim’s vagina. The 

victim recalled occasions where her and Appellant would 

be sitting on the couch while he would touch her vagina 

above her clothes or pinch her nipples. 

 The victim also testified that on one occasion the

Appellant removed the victim’s pants, forced her to lie on 

the bed, and placed his penis between the lips of her 

vagina. The Appellant ejaculated on the victim’s legs and 

vagina. The Appellant once inserted his penis into the 

victim’s anus. The victim was subjected to extreme pain 

and stated that it “felt like I had been ripped.” She ran to 

the bathroom and observed spots of blood on the toilet 

paper used to wipe the area. 

 Because of the continuous systemic abuse, the victim 

testified that the acts were “kind of like a normal thing, 

like I was kind of used to it by then. [Appellant] always 

told me if I would ever tell anybody, he would go to jail for 

a long time. He was like my best friend, so I didn’t really 

want him to leave.” 

 The victim also explained that the Appellant would tell 

her stories of his previous sexual encounters. She recalled 

that he once took her to a video rental business and rented 

a pornographic video tape. The victim waited in the 

vehicle, while the Appellant “ran” into the store, acquired 

the tape, and then ran back to the vehicle. At his

residence, he and [the] victim watched the video. He 

provided wine to the victim and encouraged her to drink it, 

which she did on one occasion. He also provided 

cigarettes to the victim and encouraged her to smoke 

them. 

 After a family dispute in 2005, the Appellant and his 

family moved out of the residence when the victim was 

around twelve years old. Because the two families no 

longer interacted, the abuse ceased. The victim did not 

come forward at that time, because she did not want to 

cause more problems or fighting. 

 However, the victim ultimately came forward with her 

abuse in the summer of 2012. She had spoken with a
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close friend who encouraged her to disclose the abuse. 

The victim was concerned, because her cousin . . . had two 

young children, which she believed resided in the same 

home as the Appellant. With the encouragement from her 

friends, the victim told her mother. She later went to the 

Charleroi Police Department to report her abuse. 

 The victim’s mother corroborated that between the 

years of 2003 and 2005 her and her husband had busy

employment schedules and relied on the Appellant and his 

wife to babysit their children. The victim had explained to 

her mother that she had been sexually assaulted for a 

period of time between the ages of nine and twelve years 

old. During that time, the victim’s temper tantrums [ ] 

prompted mother and child to visit a medical doctor. Near 

the end of the two families’ relationship, the victim told her 

mother that she no longer wanted to go to the Appellant’s 

home, but she did not expand on her reasons. 

 The final witness was Detective Lieutenant Eric Porter. 

Lt. Porter had been a member of the Charleroi Police 

Department for over fifteen years. The victim was 

interviewed by Lt. Porter and a criminal complaint was 

prepared. Due to the length of time between the abuse 

and its reporting, there was no attempt to collect any 

physical evidence by means of a “rape kit” or other

physical medical examination. He testified that it was 

common for minor children to not come forward for a long 

period of time. 

Trial Ct. Op., 6/6/14, at 2-5. Appellant did not testify or present any 

exhibits or witnesses on his behalf. On September 17, 2013, the jury found 

Appellant guilty on all counts. 

At sentencing on December 16, 2013, the trial court found Appellant 

was a second-time offender and applied the twenty-five-to-fifty-year 

mandatory sentence prescribed by 42 Pa.C.S. § 9718.2 to the convictions of 

rape, involuntary deviate sexual intercourse, and aggravated indecent 
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assault only. It structured its sentences on the remaining count to reach an 

aggregate sentence of 142 to 284 years’ imprisonment. 

On December 26, 2013, Appellant filed timely post-sentence motions 

seeking arrest of judgment, new trial, and reconsideration of sentence. The 

trial court heard arguments on February 14, 2014, and on March 4, 2014, 

denied Appellant’s requests for arrest of judgment and new trial, but granted 

sentencing reconsideration based on its failure to apply Section 9718.2 to all 

charges subject to a mandatory sentence. 

On March 12th, the trial court convened a resentencing hearing and 

did not alter its prior, consecutive sentences of twenty-five to fifty years for 

rape and four counts of involuntary deviate sexual intercourse. The court 

applied Section 9718.2 and sentenced Appellant to twenty-five to fifty years 

on the counts of statutory sexual assault, indecent assault, and corruption of 

the morals of a minor. However, it ordered these new sentences and its 

prior, consecutive sentences on the two counts of aggravated indecent 

assault to run concurrently. This resulted in an amended aggregate 

sentence of 125 to 250 years’ imprisonment base on consecutive mandatory 

sentences of twenty-five to fifty years on one count of rape and four counts 

of involuntary deviate sexual intercourse. 

Appellant filed a timely notice of appeal on April 3, 2014, and a courtordered Pa.R.A.P. 1925(b) statement of matters complained of on appeal on 
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April 17, 2014. On June 6, 2014, the court issued its Pa.R.A.P. 1925(a) 

opinion.7 This appeal followed. 

Appellant presents four issues on appeal: 

Did [the Commonwealth] present sufficient evidence, as a 

matter of law, for each of the counts for which [Appellant] 

was convicted?; 

Does the weight of the evidence require that the verdict on 

said counts be reversed and stricken?; 

Did the trial court err in sentencing by modifying its 

original sentence by imposing mandatory minimum 

sentences?; and 

Did the trial court abuse its discretion in sentencing 

[Appellant] to a term of a total of 125 to 250 years? 

Appellant’s Brief at 5. 

Appellant first claims the evidence was insufficient to sustain the 

instant convictions because the victim’s allegations were unworthy of belief. 

He asserts that for the jury to credit the victim’s testimony, it “would have 

to conclude that for approximately three (3) years the victim was abused 

virtually every day, or close to 1,000 times with individuals present in the 

home where the abuse had occurred for approximately 333 separate 

incidents of abuse.” Id. at 13. According to Appellant, the victim’s lack of 

prior disclosures, despite having opportunities to do so, further undermined 

 

7

 The Commonwealth, after requesting two extensions of time, did not file a 

brief with this Court. 
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her testimony regarding the frequency of the abuse and her experiences of 

physical pain. Id. We disagree. 

Preliminarily, we are compelled to observe Appellant failed to either 

preserve or present a proper sufficiency of the evidence claim. Specifically, 

Appellant’s Pa.R.A.P. 1925(b) statement and brief to this Court baldly assert 

the evidence was insufficient without identifying a specific basis in the 

elements of the myriad crimes of which he was convicted. See 

Commonwealth v. Melvin, 103 A.3d 1, 42 (Pa. Super. 2014) (finding 

waiver of defendant’s sufficiency claim where 1925(b) statement failed to 

specify element of offense for which evidence was insufficient); 

Commonwealth v. Manley, 985 A.2d 256, 262 (Pa. Super. 2009) (finding 

waiver where appellant’s brief presented vague, undeveloped sufficiency 

challenge that did not specify allegedly unproven elements). Moreover, 

Appellant’s challenges to the credibility of victim’s allegations ignore our 

well-settled standards of review. See Commonwealth v. Palo, 24 A.3d 

1050, 1054-55 (Pa. Super. 2011) (reiterating sufficiency review requires 

viewing all evidence in light most favorable to verdict winner and respecting 

trier of fact’s province to believe all, part, or none of evidence); 

Commonwealth v. Jette, 818 A.2d 533, 534-35 (Pa. Super. 2003) (noting 

uncorroborated testimony of victim sufficient to convict on sexual offenses). 

Indeed, Appellant’s arguments are more properly directed to the weight of 

the evidence, which we discuss below, and not the sufficiency of the 
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evidence. See Palo, 24 A.3d at 1055 (claims directed to primary witness’s 

credibility challenges weight, not sufficiency). Accordingly, Appellant’s 

sufficiency claim is subject to waiver. See id.

 In any event, were we to address Appellant’s general claim that no 

probability of fact could be derived from the victim’s testimony, our review 

of the record and the application of the proper standard of review would 

compel the conclusion that Appellant’s argument is indeed frivolous. See id.

at 1055-56; Jette, 818 A.2d at 535. Thus, Appellant’s challenge to the 

sufficiency of the evidence warrants no relief. 

Appellant next contends the verdict is against the weight of the 

evidence because the victim’s testimony was uncorroborated by third parties 

or medical evidence. Appellant’s Brief at 14-15. He asserts the absence of 

collaboration outweighs the victim’s allegations of abuse because (1) the 

alleged abuse was systemic and occurred almost daily, (2) other people 

were present in the home during “about one-third of the times she was 

abused,” and (3) another person, Appellant’s wife, was in the same room at 

other times. Id. Appellant emphasizes the victim did not promptly report 

the abuse and, although the victim experienced physical pain, bleeding, and 

discharge, a physician did not discover the abuse when he saw her for 

“temper tantrums.” Id. at 15. No relief is due. 

This Court’s consideration of a weight of the evidence claim is 

governed by the following principles: 
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Before a trial court may award a new trial on the ground 

that the verdict is against the weight of the evidence, it 

must appear that the verdict was so contrary to the

evidence as to shock one’s sense of justice and make the 

award of a new trial imperative. After the trial court has 

ruled on the weight claim, however, our role, as an

appellate court, is not to consider the underlying question 

of whether the verdict is against the weight of the

evidence, but is limited to determining whether the trial 

court abused its discretion in ruling on the weight of the 

evidence claim. 

Commonwealth v. Wall, 953 A.2d 581, 586 (Pa. Super. 2008) (citations, 

quotation marks, and brackets omitted). 

Instantly, Appellant preserved his claim in the trial court. See

Pa.R.Crim.P. 607(a)(3). The trial court denied his request for a new trial, 

opining: 

At trial, the victim testified at length to the continuous 

and systemic sexual abuse she endured as a young child at 

the hands of [Appellant]. Little to no evidence 

contradicted the victim’s testimony. The jury alone 

determined the credibility of the witnesses. After

deliberation, they found [Appellant] guilty of all charges 

against him. The verdict was not contrary to the evidence 

and did not shock this Court’s sense of justice. 

Trial Ct. Op., 3/4/14, at 2. 

 Our review of the record reveals ample support for the trial court’s 

reasoning. The victim specifically described how Appellant abused her by 

using vibrators in her vagina,8 performing oral sex on her,9 forcing her to 

 

8

 N.T., 9/16/13, at 47. 

9

Id., at 48-49. 
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perform oral sex on him,10 ejaculating on her,11 penetrating her anus with 

his finger12 and penis,13 and penetrating her vagina with his finger14 and 

with his penis.15 She testified such abuse occurred regularly.16 As the trial 

court observed, no evidence contradicted these accounts. Thus, having 

reviewed the record, we discern no abuse of discretion in the trial court’s 

ruling on Appellant’s motion for a new trial and conclude no appellate relief 

is due. 

 Appellant directs his final two challenges to the legality and 

discretionary aspects of his sentence. We first address Appellant’s legality 

challenge to the imposition of increased sentences for second-time sex 

offenders, as prescribed by 42 Pa.C.S. § 9718.2.17 See Appellant’s Brief at 

 

10 Id. at 50-51. 

11 Id. at 52, 56. 

12 Id. at 49. 

13 Id. at 56. 

14 Id. at 54. 

15 Id. at 55-56. 

16 Id. at 51. 

17 We observe Appellant raised this claim for the first time in his brief. 

Nevertheless, as discussed below, this case involves the trial court’s 

statutory authority to apply a mandatory sentence and exceed an otherwise 

proper maximum sentence. Thus, it falls within the types of sentencing 

challenges that are not waivable and can be addressed sua sponte. See 

Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en banc). 
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16-17. He does not dispute he is a second time offender.18 Rather, 

Appellant argues the trial court erred in applying Section 9718.2 because his 

criminal acts occurred between 2003 and 2005, but the statute did not take 

effect until January 1, 2007. In support, Appellant relies on 

Commonwealth v. Rose, 81 A.3d 123 (Pa. Super. 2013) (en banc), appeal 

granted, 95 A.3d 275 (Pa. 2014). We conclude relief is due on this claim. 

 We have stated: 

The scope and standard of review applied to determine the 

legality of a sentence are well established. If no statutory 

authorization exists for a particular sentence, that 

sentence is illegal and subject to correction. An illegal 

sentence must be vacated. In evaluating a trial court’s 

application of a statute, our standard of review is plenary 

and is limited to determining whether the trial court 

committed an error of law. A challenge to the legality of a 

sentence “is essentially a claim that the trial court did not 

have jurisdiction to impose the sentence that it handed 

down. . . . A trial court ordinarily has jurisdiction to 

impose any sentence which is within the range of 

punishments which the legislature has authorized for the 

defendant’s crimes.” 

Melvin, 103 A.3d at 52 (citations omitted). 

 In Rose, the defendant attacked the victim in July 1993, and was 

sentenced in 1994 for his convictions for attempted murder, aggravated 

assault, involuntary deviate sexual intercourse, and recklessly endangering 

another person. Rose, 81 A.3d at 125. The victim remained in a vegetative 

state until she died from her injuries in 2007. Id.

 

18 In 1986, Appellant pled guilty to, inter alia, rape and involuntary deviate 

sexual intercourse. N.T., 12/16/13, at 4. 
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A month after the victim’s death, the Commonwealth, in Rose, 

charged the defendant with homicide, and he was found guilty of thirddegree murder in 2010. Id. at 125-26. At sentencing, the defendant 

argued a twenty-year maximum applied based on law at the time of the 

attack. Id. at 126. The Commonwealth asserted a forty-year maximum 

applied based on 18 Pa.C.S. § 1102(d),19 which took effect in 1995, two 

years after the attack, but more than a decade before the death of the 

victim and completion of the homicide. Id. at 126. The trial court agreed 

with the Commonwealth and sentenced defendant to twenty to forty years’ 

imprisonment. Id. 

On appeal, the defendant challenged the trial court’s application of 

Section 1102(d). The Rose Court vacated the sentence, and concluded: 

Since the criminal acts that caused the victim’s death were 

completed prior to the passage of § 1102(d), and that 

statute increased the penalty for the acts causing the 

victim’s death, we find that Appellant was improperly 

sentenced in violation of the respective federal and 

Pennsylvania Constitution ex post facto clauses. 

Id. at 136. 

 

19 Section 1102(d) sets the maximum penalty for murder of the third 

degree: 

Notwithstanding section 1103, a person who has been

convicted of murder of the third degree or of third degree 

murder of an unborn child shall be sentenced to a term 

which shall be fixed by the court at not more than 40 

years. 

18 Pa.C.S. § 1102(d) (as amended in 1997 to include unborn children). 
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 Now President Judge Gantman, joined by Judge Allen, dissented, 

reasoning: 

[a]lthough the attack happened years before, there was no 

murder until the final element of the offense, the victim’s 

death, actually occurred. In my opinion, the court did not 

“retroactively apply” Section 1102(d); rather, the court 

utilized the sentencing statute in effect at the time of the 

murder. Therefore, the court’s sentence was proper 

because Section 1102(d) went into effect in 1995, before 

the murder occurred. 

Id. at 137 (Gantman, J., dissenting). 

As noted above, Appellant’s current crimes occurred between 2003 

and 2005. As enacted in 2006, Section 9718.2 provided, in relevant part: 

(a) Mandatory sentence.— 

(1) Any person who is convicted in any court of this 

Commonwealth of an offense set forth in section 

9795.1(a) or (b) (relating to sexual offenses and tier 

system) shall, if at the time of the commission of the 

current offense the person had previously been 

convicted of an offense set forth in section 9795.1(a) or 

(b) or an equivalent crime under the laws of this 

Commonwealth in effect at the time of the commission 

of that offense or an equivalent crime in another 

jurisdiction, be sentenced to a minimum sentence of at 

least 25 years of total confinement, notwithstanding 

any other provision of this title or other statute to the 

contrary. . . . 

(b) Mandatory maximum.—An offender sentenced to a 

mandatory minimum sentence under this section shall be 

sentenced to a maximum sentence equal to twice the 

mandatory minimum sentence, notwithstanding 18 Pa.C.S. 

§ 1103 (relating to sentence of imprisonment for felony) or 

any other provision of this title or other statute to the 

contrary. 
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42 Pa.C.S. § 9718.2(a)(1), (b) (subsequently amended Dec. 20, 2011, 

effective Dec. 20, 2012, to comport with adoption of 42 Pa.C.S. § 9799.14 

(relating to sexual offenses and tier system)). As noted above, the statute 

took effect on January 1, 2007. 

 Relying on this statute, the trial court imposed mandatory minimum 

sentences of twenty-five to fifty years for rape, involuntary deviate sexual 

intercourse, aggravated indecent assault, statutory sexual assault, indecent 

assault, and corruption of the morals of minors. These mandatory sentences 

exceed the sentences authorized by the sentencing statute in effect when 

Appellant committed these crimes. Specifically, the former statute 

authorized maximum sentences of at least twenty, and up to forty years, for 

rape and involuntary deviate sexual intercourse,20 ten years for aggravated 

indecent assault and statutory sexual assault, and up to five years for 

indecent assault and corruption of the morals of minors. See 18 Pa.C.S. §§ 

1103, 1104. 

 The instant case does not raise the thorny issue of whether a statute 

should apply based on the commission of the acts or the completion of the 

 

20 As noted above Sections 3121(a)(6) (rape) and 3123(a)(b) (involuntary 

deviate sexual intercourse) were designated as Subsection (c) in the 

respective statutes effective February 14, 2003. The General Assembly also 

increased the maximum sentence to forty years. See 18 Pa.C.S. §§ 

1103(a), 3121(e)(1) (effective Feb. 14, 2003). Given the narrow sentencing 

issue raised in this appeal, we decline to consider whether a twenty or forty 

year maximum sentence applies. 
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crime. Instead, the narrower question before us is whether the trial court 

properly applied Section 9718.2 when Appellant was convicted for crimes 

completed between 2003 and 2005 and sentencing statute came into effect 

in 2007. Under these circumstances, Rose compels the conclusion that the 

trial court erred in relying on a sentencing statute that post-dates the 

subject crimes. Thus, all sentences imposed based on Section 9718.2 must 

be vacated. See Melvin, 103 A.3d at 52. As our decision affects a 

fundamental aspect of the trial court’s sentencing scheme, we decline to 

consider Appellant’s discretionary sentencing claims, vacate the judgment of 

sentence in part, and remand this case for resentencing. See 

Commonwealth v. Williams, 997 A.2d 1205, 1210-11 (Pa. Super. 2010). 

 Judgment of sentence affirmed in part and vacated in part. Case 

remanded for resentencing. Jurisdiction relinquished. 

Judge Shogan joins the memorandum. 

President Judge Gantman concurs in the result. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 6/16/2015 

 
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