J-S52032-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA

 v.

DERRICK WILSON MCCRAY,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 No. 2578 EDA 2015

Appeal from the Judgment of Sentence March 23, 2015, 

in the Court of Common Pleas of Bucks County, 

Criminal Division, at No(s): CP-09-CR-0003589-2014

BEFORE: FORD ELLIOTT, P.J.E., STABILE and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED SEPTEMBER 14, 2016

Derrick Wilson McCray (Appellant) appeals from the judgment of 

sentence entered following his convictions for rape - threat of forcible 

compulsion, indecent assault - threat of forcible compulsion, criminal 

trespass, false imprisonment, simple assault, and possession of an 

instrument of crime. We affirm.

The aforementioned charges stem from the rape and sexual assault of 

Appellant’ ex-wife, Constance Linke, on March 18, 2014. Ms. Linke testified 

that, on that date, Appellant entered her home through a basement window 

while she was getting ready for work and raped her at knifepoint. Ms. Linke 

indicated that she was afraid of Appellant and told him that she did not want 

to have sexual relations with him. At trial, Appellant maintained that the 

encounter was pre-arranged and consensual. Appellant was convicted 

following a jury trial and, on March 23, 2015, he was sentenced to an 
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aggregate term of nine to 24 years’ incarceration. Appellant’s timely-filed 

post-sentence motions were denied on August 20, 2015. This appeal 

followed. Both Appellant and the trial court complied with the mandates of 

Pa.R.A.P. 1925.

Appellant raises the following issues for our review, which we have 

renumbered for ease of disposition.

1. Did the trial court err in failing to grant the defense request 

for a continuance to investigate and subpoena a witness, whose 

statement was provided by the Commonwealth on the day of 

trial?

2. Did the trial court err in allowing the Commonwealth to elicit 

background information from [Ms. Linke] regarding her job, work 

history, military history, and educational background that was 

not provided in discovery and unfairly buttressed her testimony?

3. Did the trial court err in allowing evidence that [Ms. Linke] 

paid Appellant’s bills?

4. Did the trial court err in refusing to allow the defense to crossexamine [Ms. Linke] regarding her mental health status?

5. Were the guilty verdicts on counts of rape, indecent assault, 

criminal trespass, false imprisonment, and simple assault against 

the clear weight of the evidence that showed that [] Appellant 

was admitted into [Ms. Linke’s] home, where they engaged in 

consensual sex and no force was employed or weapon used by [] 

Appellant?

6. Was the sentence of one to five years on the count of 

indecent assault running consecutively with the seven to 

fourteen year sentence imposed on rape, illegal and excessive, 

because the two counts merged for purposes of sentence and 

the sentence essentially punishes the same conduct twice?
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7. Did the trial court abuse its discretion in imposing an 

aggregate sentence of nine to twenty-four years, which was 

excessive under the circumstances in light of [] Appellant’s 

personal circumstances, his character, and the circumstances of 

the offense?

Appellant’s Brief at 6-7 (unnecessary capitalization, parenthetical references, 

and trial court answers omitted).

In his first argument, Appellant claims the trial court erred in denying 

his request for a continuance to permit him to investigate, and if necessary, 

subpoena, Laura Norwood, an employee of the daycare center attended by 

the parties’ minor child. Appellant’s Brief at 18-20. Appellant contends that 

he was unaware of Norwood’s existence until the Commonwealth provided 

his counsel with a copy of her statement (taken two days before trial) on the 

morning of trial. Id. According to her statement, Norwood, now residing in 

Arkansas, claimed that Ms. Linke was well-dressed and wearing her hair 

down when she came to the daycare to pick up the parties’ child the day of 

the incident, which was so unusual that Norwood was compelled to ask if Ms. 

Linke had a job interview that day, to which Linke responded that Appellant 

had raped her at knifepoint that morning. Id. at 19. Appellant claims that 

this statement supported his defense that the encounter was planned and 

consensual, and that the court erred in denying his request for a 

postponement to investigate further. Id. at 19-20.

We review this claim mindful of our standard of review.
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The grant or denial of a motion for a continuance is within the 

sound discretion of the trial court and will be reversed only upon 

a showing of an abuse of discretion. An abuse of discretion is not 

merely an error of judgment; rather discretion is abused when 

the law is overridden or misapplied, or the judgment exercised is 

manifestly unreasonable, or the result of partiality, prejudice, 

bias, or ill will, as shown by the evidence or the record[.]

Commonwealth v. Antidormi, 84 A.3d 736, 745 (Pa. Super. 2014) 

(citations and quotation marks omitted).

The trial court determined that Appellant had had ample opportunity to 

discover the existence of and investigate Norwood as she was “discovered” 

while the Commonwealth was interviewing two other daycare workers 

defense counsel had subpoenaed for trial. N.T., 11/12/2014, at 10-14; Trial

Court Opinion, 12/14/2015, at 16. Under such circumstances, Appellant’s 

claim that he was unaware of Norwood’s existence until she was interviewed 

by the Commonwealth is unavailing. We are unconvinced that he was 

prejudiced when Norwood was discoverable before trial through exercise of 

due diligence. Accordingly, we find no error in the trial court’s refusal of 

Appellant’s request for a postponement. 

Appellant’s next three issues concern the admission at trial of various 

items of evidence. We evaluate those claims mindful of the following 

standard of review.

Questions concerning the admissibility of evidence lie 

within the sound discretion of the trial court, and a reviewing 

court will not reverse the trial court’s decision absent a clear 

abuse of discretion. Abuse of discretion is not merely an error of 
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judgment, but rather where the judgment is manifestly 

unreasonable or where the law is not applied or where the record 

shows that the action is a result of partiality, prejudice, bias or ill 

will.

Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super. 2010) (citations 

omitted).

The threshold inquiry with admission of evidence is 

whether the evidence is relevant. Evidence is relevant if it 

logically tends to establish a material fact in the case, tends to 

make a fact at issue more or less probable, or supports a 

reasonable inference or presumption regarding the existence of a 

material fact. In addition, evidence is only admissible where the 

probative value of the evidence outweighs its prejudicial impact. 

However, where the evidence is not relevant there is no need to 

determine whether the probative value of the evidence 

outweighs its prejudicial impact. Instead, once it is determined 

that the trial court erred in admitting the evidence, the inquiry 

becomes whether the appellate court is convinced beyond a 

reasonable doubt that such error was harmless. Harmless error 

exists where: (1) the error did not prejudice the defendant or 

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

evidence was merely cumulative of other untainted evidence 

which was substantially similar to the erroneously admitted 

evidence; or (3) the properly admitted and uncontradicted 

evidence of guilt was so overwhelming and the prejudicial effect 

of the error was so insignificant by comparison that the error 

could not have contributed to the verdict.

Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 1998) (citations and 

quotation marks omitted).

Appellant first complains that the trial court erred in permitting the 

Commonwealth to elicit background information from Ms. Linke, including 

her employment, military, and educational background. Appellant’s Brief at 

21-22. Appellant contends that this information was not provided in 
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discovery1and its admission served to bolster improperly Ms. Linke’s 

testimony, resulting in prejudice. Id.

The trial court addressed this claim as follows.

Appellant’s [c]ounsel objected to all testimony [Ms. Linke] 

provided regarding where she worked, which she testified that 

she is “a special agent for the United States Office of Personnel 

Management, Federal Investigative Services.” Appellant’s 

[c]ounsel also objected to testimony regarding the length of time 

she worked there, and what she generally did as a living, which 

she testified to conducting “background investigations for 

positions of employment involving national security of the 

public’s trust.” Appellant’s [c]ounsel also objected when she was 

questioned about where she traveled to as part of her job and 

whether she worked from home. After this last objection, the 

[c]ourt called both parties to sidebar to discuss the Appellant’s 

objections. During a sidebar conversation, the [c]ourt stated 

that:

THE COURT: Obviously, you’re entitled to lay some 

background, but at this point I’m starting to lose 

sight of the relevance of this. And I assume 

relevance is your objection?

[APPELLANT’S COUNSEL]: Relevance, and I have no 

information about any of this. I have no idea where 

this is going. I don’t know what she’s going to say. 

This has not been provided to me in discovery, and I 

have no idea where this is going. 

I think she’s trying to make, you know, her job 

buttress her testimony, and i think it’s unfair. It has 

no relevance to this case whatsoever.

 

1

In his brief, Appellant does not argue that the Commonwealth violated the 

rules of discovery with respect to this issue. It is worth noting that the 

parties were married prior to this incident and, arguably, any information 

about Ms. Linke’s military or employment background was known to 

Appellant at the time of trial.
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[ASSISTANT DISTRICT ATTORNEY (ADA)]: Defense 

counsel had indicated that a witness that - from the 

day care center that they’re going to testify that she 

showed up like she had never before, dressed up like 

she never had been before. I think the implication 

was in her opening statement that the victim in this 

case dressed up to meet [Appellant]. 

The relevance of what she’s going to say is 

that every - most days she stays at home and works 

in sweatpants and a sweatshirt and doesn’t do 

anything other than work from home.

On the days that she doesn’t work from home, 

she goes out and interviews people. And when she 

does that, she does get dressed up.

THE COURT: And I’m assuming --

[ADA]: And on this day she was scheduled to 

conduct five interviews, and that’s why she appeared 

differently than she had any -

THE COURT: All right. That’s appropriate. Let’s get to

that point, though.

The Commonwealth then questioned the witness as to her 

education and whether she was in the armed forces in order to 

explain how she received her current job. Finally, after being 

questioned whether she went overseas while being in the Navy, 

Appellant’s [c]ounsel objected. The [c]ourt overruled the 

objection because “credibility of a witness is always an issue,” 

but only allowed some testimony. The Supreme Court of 

Pennsylvania has held that “it is the province of the trier of fact 

to pass upon the credibility of witnesses and the weight to be 

accorded the evidence produced. The fact finder is free to 

believe all, part or none of the evidence.” The [c]ourt did not 

abuse its discretion in allowing [Ms. Linke] to testify about 

background information and the jury had the ability to determine 

the credibility of [Ms. Linke’s] testimony throughout the direct 

and cross-examinations.
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Trial Court Opinion, 12/14/2015, at 17-18 (citations to notes of testimony 

omitted).

It is well-settled that, “in a rape case, Pennsylvania law has long 

stated that the credibility of the complaining witness is always at issue.” 

Commonwealth v. Bryson, 860 A.2d 1101, 1104 (Pa. Super. 2004). 

Accordingly, evidence of Ms. Linke’s credibility was relevant to the 

proceeding. We note that the defense herein was one of consent and relied 

heavily on Ms. Linke’s appearance the day of the incident, which was directly 

tied to her employment and personal history. Given this defense, and the 

relevance of Ms. Linke’s credibility, the probative value of the complained of 

background information outweighed any prejudice to Appellant. Thus, we 

find no error in the trial court’s admission of Ms. Linke’s background 

testimony to establish her credibility and rebut Appellant’s defense. 

Appellant also claims that the court erred in admitting evidence that 

Ms. Linke paid Appellant’s bills. Appellant’s Brief at 23-24. Specifically, 

Appellant contends that this information was not relevant and served to 

prejudice him. Id. This argument is belied by the record. As the trial court 

explained, 

the testimony was introduced for an explanation as 

to why [Ms. Linke] and [] Appellant were 

communicating and planned to meet on February 14, 

2014. Appellant contacted [Ms. Linke], asking her to 

help him pay his phone bill so it would not get shut 

off. [Ms. Linke] testified she agreed to help because 
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she knew he was looking for jobs and could receive 

calls for interviews, and ultimately this would help 

support their daughter. [Ms. Linke] then testified to 

helping [] Appellant financially after she moved out 

by paying the rent for their apartment, the utility 

bills, and food if the Appellant needed help. Later, 

Appellant had the opportunity to provide an 

explanation for why he contacted [Ms. Linke] for 

financial assistance. Appellant testified that he found 

out that the money in his bank account was no 

longer there and [Ms. Linke] helped [] Appellant rent 

cars and pay his cellphone bill. Therefore,[] 

Appellant had the opportunity to present an 

explanation of [Ms. Linke’s] testimony regarding 

financially supporting the Appellant and the jury was 

able to weigh the credibility of [Ms. Linke] and the 

Appellant.

Trial Court Opinion, 12/14/2015, at 18-19 (citations to notes of testimony 

omitted).

As the trial court explained, Ms. Linke’s testimony was admitted not to 

establish Appellant’s indigence, but to explain why she had planned to see 

Appellant on the day of the incident. Because such testimony is relevant to 

Ms. Linke’s credibility, and to Appellant’s defense that the parties were in 

contact despite their separation and that the encounter was consensual, we 

determine that the trial court did not err in admitting the testimony of which 

Appellant now complains.

Appellant also argues that the trial court erred in refusing to allow Ms. 

Linke to be cross-examined as to her mental health status. Appellant’s Brief 

at 25-26.
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During trial, Appellant’s [c]ounsel attempted to question 

Karen Dougherty, a registered nurse in the emergency 

department and director of the forensic nursing program at 

Abington Memorial Hospital, about [Ms. Linke’s] mental health 

and past medical history taken as part of the victim’s [sexual 

abuse] exam. The Commonwealth objected and Appellant’s 

[c]ounsel explained that the “Commonwealth put on evidence 

that that was part of what the examination entailed. I’m just 

asking what the result of that was.” At sidebar, the [c]ourt ruled 

that:

THE COURT: First of all, there is a big difference 

between saying: Do you take a past medical history, 

and, what is that. A victim of a sexual assault does 

not leave any right to what their past medical history 

is. I don’t know what you’re trying to elicit here. 

What’s in the report that you wish to get out of 

there?

[APPELLANT’S COUNSEL]: It indicates a past medical 

history of post-traumatic stress disorder, anxiety and 

depression, and they take Depakote.

THE COURT: How is that relevant today in this 

matter?

[APPELLANT’S COUNSEL]: Well, it indicates that [Ms. 

Linke] has a psychiatric history.

THE COURT: How is that relevant in this matter? Do 

you have some testimony that you are going to elicit 

to show that at time time of this proceeding, that 

she was psychotic, or on this medication, that the 

medication would in some way affect her ability to 

understand or recall the events?

[APPELLANT’S COUNSEL]: We’re not putting on 

testimony, Judge, but I do think I’m allowed to ask 

that question [of Nurse Dougherty].

THE COURT: You wish to blacken a reputation? Is 

that what you are attempting to do?
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[APPELLANT’S COUNSEL]: No. It’s part of her 

medical history.

THE COURT: The objection is sustained. It’s 

irrelevant.

(Sidebar concluded). 

Trial Court Opinion, 12/14/2015, at 19-20 (citations to notes of testimony 

omitted).

“When reviewing a challenge to the scope of cross-examination, we 

employ the following standard: The scope and the manner of crossexamination are within the sound discretion of the trial court and will not be 

overturned unless the court has abused that discretion.” Commonwealth v. 

Nunn, 947 A.2d 756, 761 (Pa. Super. 2008) (citation omitted). Further, 

when determining the admissibility of evidence of a witness’ 

mental instability,

[t]he crucial determination that a trial judge must 

make ... is whether [this evidence] is related to the 

subject of the litigation or whether it affects the 

testimonial ability of the witness so as to impeach 

him. The evidence can be said to affect the credibility 

of a witness when it shows that his mental 

disorganization in some way impaired his capacity to 

observe the event at the time of its occurrence, to 

communicate his observations accurately and 

truthfully at trial, or to maintain a clear recollection 

in the meantime.

Commonwealth v. Gonzalez, 109 A.3d 711, 726 (Pa. Super. 2015) 

(citation omitted).
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Applying Gonzalez, we find no error in the trial court’s limitation of 

Appellant’s cross-examination where Appellant offered nothing to suggest 

that evidence of Ms. Linke’s mental health history was relevant in any way to 

the incident in question or her testimonial capacity regarding the incident. 

Moreover, Appellant has failed to establish that the court “erred in not 

allowing the defense to inquire of [Ms. Linke] whether her multiple mental 

health diagnoses impacted her ability to recall the events.” Appellant’s Brief 

at 26. The record reflects that Ms. Linke testified second, after a responding 

officer and immediately before the attending nurse performing the assault 

examination. N.T., 11/12/2014. The notes of testimony make clear that 

Appellant did not attempt to cross-examine Ms. Linke regarding her mental 

health history, but instead chose to question the attending nurse regarding 

what Ms. Linke reported during her sexual assault examination. Id. at 126-

169. Accordingly, this claim fails. 

Appellant next argues that his verdicts are against the weight of the 

evidence presented at trial. Appellant’s Brief at 14-17.

The law pertaining to weight of the evidence claims is wellsettled. The weight of the evidence is a matter exclusively for 

the finder of fact, who is free to believe all, part, or none of the 

evidence and to determine the credibility of the witnesses. A new 

trial is not warranted because of a mere conflict in the testimony 

and must have a stronger foundation than a reassessment of the 

credibility of witnesses. 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. 
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On appeal, our purview is extremely limited and is 

confined to whether the trial court abused its discretion in 

finding that the jury verdict did not shock its conscience. Thus, 

appellate review of a weight claim consists of a review of the 

trial court’s exercise of discretion, not a review of the underlying 

question of whether the verdict is against the weight of the 

evidence. 

Gonzalez, 109 A.3d at 723 (quotation marks and citations omitted).

Here, Appellant’s limited argument on this point assails alleged 

inconsistencies in Ms. Linke’s testimony and suggests that the jury erred in 

disbelieving his version of events. Appellant’s Brief at 14-17. Our case law 

is clear that a jury sitting as finder of fact is “in the best position to view the 

demeanor of the Commonwealth’s witnesses and to assess each witness’[s] 

credibility.” Commonwealth v. Olsen, 82 A.3d 1041, 1049 (Pa. Super. 

2013) (citation omitted). Here, the Commonwealth presented the testimony 

of the responding officers and detectives, Ms. Linke, and the attending 

nurse, as well as that of Appellant’s girlfriend and her grandfather. 

Appellant testified on his own behalf and presented the testimony of a 

daycare worker who observed Ms. Linke on the day of the incident. The jury 

was free to find the Commonwealth’s witnesses’ testimony credible and 

resolve any inconsistencies in the Commonwealth’s favor. See generally 

Commonwealth v. Horne, 89 A.3d 277, 286 (Pa. Super. 2014) (holding 

that Horne’s weight of the evidence claim could not prevail as “the jury 

resolved the inconsistencies among the testimonies as it saw fit and reached 
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a verdict.”); Commonwealth v. Simmons, 662 A.2d 621, 630 (Pa. 1995) 

(“After examining the evidence in this case, we find that appellant’s 

assertion that the inconsistencies in the witnesses’ testimony rendered them 

incredible to have no merit since the inaccuracies claimed are only minor 

and a witness’s credibility is solely for the [fact-finder] to determine.”). We 

discern no abuse of discretion in the trial court’s finding that the jury’s 

verdict was not against the weight of the evidence. Accordingly, Appellant’s 

weight claim does not warrant relief. 

Appellant next argues that his sentence is illegal because the crimes of 

indecent assault and rape should have merged for the purposes of 

sentencing. Appellant’s Brief at 27-28. Our standard of review is de novo

and the scope of our review is plenary. Commonwealth v. Baldwin, 985 

A.2d 830, 833 (Pa. 2009) (citation omitted).

It is well-settled that “[n]o crimes shall merge for sentencing purposes 

unless the crimes arise from a single criminal act and all of the statutory 

elements of one offense are included in the statutory elements of the other 

offense. Where crimes merge for sentencing purposes, the court may 

sentence the defendant only on the higher graded offense.” 42 Pa.C.S. 

§ 9765. Thus, merger is “prohibited unless two distinct facts are present: 1)

the crimes arise from a single criminal act; and 2) all of the statutory 

elements of one of the offenses are included in the statutory elements of the
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other.” Baldwin, 985 A.2d at 833.

This Court has determined that “when an indecent assault conviction is 

predicated upon an act separate from the act of forcible intercourse, the 

indecent assault conviction does not merge with a conviction for rape. This is 

true whether the act which constitutes indecent assault is committed 

immediately prior to, or concurrently with the rape.” Commonwealth v. 

Richter, 676 A.2d 1232, 1236 (Pa. Super. 1996). Applying this precedent, 

the trial court explained,

A person commits rape, “when the person engages in 

sexual intercourse with complainant: (2) by threat of forcible 

compulsion that would prevent resistance by a person of 

reasonable resolution.” 18 Pa.C.S.[] §3121(A)(2). A person is 

guilty of indecent assault “if the person has indecent contact 

with the complainant, causes complainant to have indecent 

contact with the person or intentionally causes the complainant 

to come into contact with seminal fluid, urine or feces for the 

purpose of arousing sexual desire in the person or the 

complainant and: (2) the person does so by forcible 

compulsion.” 18 Pa.C.S.[] §3126(a)(2). Here, [Appellant’s] two 

acts are two distinct crimes which do not merge. [] Appellant, 

while holding a knife, forced the victim into her bedroom, made 

her undress and demanded she turn around and bend over. [] 

Appellant then inserted his penis into her vagina for a few 

minutes. Therefore, the jury found the Appellant guilty of rape 

by forcible compulsion. Next, [] Appellant while still holding the 

knife, made the victim turn around and get on her knees. [] 

Appellant then ejaculated onto her face. Therefore, the criminal 

acts were committed successively and were not necessarily an 

ingredient of the other, so the sentence[es] of the two 

convictions do not merge.

Trial Court Opinion, 12/14/2015, at 13.
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We agree with the court’s reasoned analysis and, thus, find no error in 

the trial court’s imposition of a separate sentence for indecent assault and 

rape under these facts. Accordingly, we hold that Appellant is not entitled to 

relief on this issue.

Finally, Appellant presents a challenge to the discretionary aspects of 

his sentence, arguing that the imposition of consecutive, rather than 

concurrent sentences was an abuse of the court’s discretion. Appellant’s 

Brief at 29-30. We address this claim mindful of the following:

It is well settled that, with regard to the discretionary aspects of 

sentencing, there is no automatic right to appeal.

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; and (4) whether the concise statement raises a 

substantial question that the sentence is appropriate under 

the sentencing code.... [I]f 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) (citations 

omitted).

Appellant sought reconsideration of his sentence in a post-sentence 

motion and he timely filed a notice of appeal. Additionally, he has included a 

Rule 2119(f) statement in his brief to this Court. Nonetheless, the 
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Commonwealth asks that we find this issue waived on the basis that 

Appellant’s post-sentence motion and 1925(b) statement claim that the 

sentence is excessive “in light of [Appellant’s] personal circumstances, his 

character and the circumstances of the offense” and fail to raise an issue 

regarding the consecutive nature of the sentence. Commonwealth’s Brief at 

46. Thus, the Commonwealth argues that the particular claim Appellant 

seeks to raise on appeal is waived for failure to raise it in the court below. 

Id.; Pa.R.A.P. 302(a). We are constrained to agree.

[F]or any claim that was required to be preserved, [an 

appellate court] cannot review a legal theory in support of that 

claim unless that particular legal theory was presented to the 

trial court. Thus, even if an appellant did seek to withdraw pleas 

or to attack the discretionary aspects of sentencing in the trial 

court, the appellant cannot support those claims in this Court by 

advancing legal arguments different than the ones that were 

made when the claims were preserved.

Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008). Because 

the legal theory advanced before this Court differs from that raised before 

the trial court in Appellant’s post-sentence motion and his 1925(b) 

statement, Appellant has waived this claim.

Judgment of sentence affirmed. Jurisdiction relinquished.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/14/2016