J-S05018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

ANDREW TODD FRANTZ

                            Appellant                No. 1190 MDA 2016


              Appeal from the Judgment of Sentence June 1, 2016
               In the Court of Common Pleas of Lancaster County
              Criminal Division at No(s): CP-36-CR-0001931-2015


BEFORE: BENDER, P.J.E., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                        FILED FEBRUARY 24, 2017

        Appellant, Andrew Frantz, appeals from the judgment of sentence

entered after a jury convicted him of statutory sexual assault, unlawful

contact with a minor, corruption of minors, and involuntary deviate sexual

intercourse with a person less than 16 years of age. On appeal, Frantz

argues that the trial court abused its discretion in imposing sentence, and

erred in failing to declare a mistrial due to statements made in the

prosecutor’s closing argument. After careful review, we affirm.

        At trial, the Commonwealth presented the testimony of the victim. She

testified that she was Frantz’s stepsister. See N.T., Trial, 2/1-3/16, at 68-

69. In 2003, when she was approximately 13 years old, she was removed
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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from her abusive mother’s house and began living with her father, step-

mother, and Frantz. See id., at 71.

      At first, her relationship with Frantz was “typical brother and sister.”

Id., at 81. However, over time this changed. Eventually, Frantz cornered her

in the living room late one night and forced her to perform oral sex on him.

See id., at 85. In another instance, she woke up one night to find Frantz

attempting to stick his penis in her mouth. See id., at 87.

      The victim testified that, around the time she started eighth grade,

Frantz had anal intercourse with her approximately 5 times. See id., at 89.

During the same time period, Frantz also had vaginal intercourse with the

victim multiple times. See id., at 91.

      Prior to trial, the Commonwealth and Frantz agreed that defense

counsel could cross-examine the victim about her use of drugs during the

relevant parts of her life, and about the paternity of the child she gave birth

to when she was 16 years old. However, the parties agreed that no other

reference to her sexual history would be admissible. See id., at 5-6.

      After the jury found Frantz guilty on all counts, the trial court

requested a pre-sentence investigation report (“PSI”) and scheduled a

sentencing hearing. After reviewing the PSI, a victim impact statement, and

the arguments of counsel, the trial court sentenced Frantz to an aggregate

sentence of imprisonment of 8 to 20 years.




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      Frantz filed post-sentence motions arguing that the trial court abused

its discretion in imposing a consecutive sentence and improperly based the

sentence on Frantz’s failure to take responsibility for the crime. The trial

court denied the motions, and this timely appeal followed.

      On appeal, Frantz first argues that the trial court abused its discretion

in imposing sentence. “A challenge to the discretionary aspects of a sentence

must be considered a petition for permission to appeal, as the right to

pursue such a claim is not absolute.” Commonwealth v. McAfee, 849 A.2d

270, 274 (Pa. Super. 2004) (citation omitted). When challenging the

discretionary aspects of the sentence imposed, an appellant must present a

substantial question as to the inappropriateness of the sentence. See

Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). “Two

requirements must be met before we will review this challenge on its

merits.” McAfee, 849 A.2d at 274 (citation omitted). “First, an appellant

must set forth in his brief a concise statement of the reasons relied upon for

allowance of appeal with respect to the discretionary aspects of a sentence.”

Id. (citation omitted).

      “Second, the appellant must show that there is a substantial question

that the sentence imposed is not appropriate under the Sentencing Code.”

Id. (citation omitted). That is, “the sentence violates either a specific

provision of the sentencing scheme set forth in the Sentencing Code or a

particular fundamental norm underlying the sentencing process.” Tirado,


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870 A.2d at 365 (citation omitted). We examine an appellant’s Rule 2119(f)

statement to determine whether a substantial question exists. See id. “Our

inquiry must focus on the reasons for which the appeal is sought, in contrast

to the facts underlying the appeal, which are necessary only to decide the

appeal on the merits.” Id. (citation omitted).

      In the present case, Frantz’s appellate brief contains the requisite Rule

2119(f) concise statement. Furthermore, he preserved his argument against

the discretionary aspects of his sentence through a post-sentence motion.

Thus, he is in technical compliance with the requirements to challenge the

discretionary aspects of a sentence.

      Frantz first argues in his Rule 2119(f) statement that the court abused

its discretion in relying on its impression that Frantz had not taken

responsibility for his crimes. This argument raises a substantial question.

See Commonwealth v. Bethea, 379 A.2d 102, 104 (Pa. 1977) (“[A] plea

of not guilty or a demand for a jury trial are not factors that a judge should

consider in deciding whether to give a more severe sentence.”). However,

our review of the sentencing transcript does not convince us that the trial

court punished Frantz for pleading not guilty.

      The trial court exhaustively reviewed Frantz’s circumstances, including

the fact that he is a single parent, who had maintained gainful employment,

and had not been charged with another crime of sexual violence in the

intervening years. See N.T., Sentencing, 6/1/2016, at 10. Furthermore, the


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trial court reviewed the PSI. See id. While the trial court did criticize Frantz’s

lack of candor with the court regarding the crimes, see id., at 11, it

ultimately imposed standard range sentences at all counts, with one count of

involuntary deviate sexual intercourse being run consecutive to the other

sentences.

      A   sentence    within   the   standard   range   of   the   guidelines   is

presumptively reasonable. See Commonwealth v. Ventura, 975 A.2d

1128, 1135 (Pa. Super. 2009). Furthermore, a sentencing court “has the

discretion to impose sentences consecutively or concurrently and, ordinarily,

a challenge to this exercise of discretion does not raise a substantial

question.” Id. (citation omitted). See also 42 Pa.C.S.A. § 9721(a). “The

imposition of consecutive, rather than concurrent, sentences may raise a

substantial question in only the most extreme circumstances, such as where

the aggregate sentence is unduly harsh, considering the nature of the crimes

and the length of imprisonment.” Commonwealth v. Moury, 992 A.2d 162,

171-72 (Pa. Super. 2010) (citation omitted).

      This is not an extreme circumstance. The jury convicted Frantz on,

among others, two counts of involuntary deviate sexual intercourse with his

14-year-old stepsister. An aggregate sentence of imprisonment of 8 to 20

years is not unduly harsh. Thus, Frantz’s first challenge to the discretionary

aspects of his sentence merits no relief.




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      In his second argument, he claims the trial court failed to consider his

rehabilitative needs. “[A] generic claim that a sentence is excessive does not

raise a substantial question for our review.” Commonwealth v. Christine,

78 A.3d 1, 10 (Pa. Super. 2013), aff’d, 125 A.3d 394 (Pa. 2015) (citation

omitted). “Additionally, this Court has repeatedly held that an allegation that

the trial court failed to consider particular circumstances or factors in an

appellant’s case go to the weight accorded to various sentencing factors and

do not raise a substantial question.” Id. at 10-11 (citations omitted).

      While Appellant argues that the sentencing court failed to consider his

rehabilitative needs and “other relevant factors,” in substance he merely

argues that the court failed to sufficiently address factors of record.

“[A]rguments that the sentencing court failed to consider the factors

proffered in 42 Pa.C.S. § 9721 does present a substantial question whereas

a statement that the court failed to consider facts of record, though

necessarily encompassing the factors of § 9721, has been rejected.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014)

(en banc), appeal denied, 104 A.3d 1 (Pa. 2014) (citation omitted). The

sentencing court reviewed a PSI. See N.T., Sentencing, 2/5/16 at 4. Where

the sentencing court had the benefit of reviewing a PSI, we must

      presume that the sentencing judge was aware of relevant
      information regarding the defendant's character and weighed
      those considerations along with mitigating statutory factors. A
      pre-sentence report constitutes the record and speaks for itself.
      In order to dispel any lingering doubt as to our intention of
      engaging in an effort of legal purification, we state clearly that

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      sentencers are under no compulsion to employ checklists or any
      extended or systematic definitions of their punishment
      procedure. Having been fully informed by the pre-sentence
      report, the sentencing court's discretion should not be disturbed.
      This is particularly true, we repeat, in those circumstances where
      it can be demonstrated that the judge had any degree of
      awareness of the sentencing considerations, and there we will
      presume also that the weighing process took place in a
      meaningful fashion. It would be foolish, indeed, to take the
      position that if a court is in possession of the facts, it will fail to
      apply them to the case at hand.

Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citation

omitted). As the trial court in this case did have the benefit of a PSI, we

must presume that it considered all relevant sentencing factors and

fashioned an individualize sentence. Based on the foregoing, we are

constrained to find that Frantz’s claim that the sentencing court did not

adequately consider relevant factors of record fails to raise a substantial

question.

      In his second numbered issue on appeal, Frantz contends that the trial

court erred in refusing to declare a mistrial after the prosecutor argued that

Frantz was “the first person to introduce her [the victim] to this world of

sex.” N.T., Trial, 2/1-3/2016, at 196. Frantz contends this argument was

improper pursuant to the parties’ pre-trial agreement that the victim’s

sexual history was inadmissible.

      It is well established that a prosecutor is permitted to vigorously
      argue his case so long as his comments are supported by the
      evidence or constitute legitimate inferences arising from that
      evidence.




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         In considering a claim of prosecutorial misconduct, our
         inquiry is centered on whether the defendant was
         deprived of a fair trial, not deprived of a perfect one.
         Thus, a prosecutor’s remarks do not constitute reversible
         error unless their unavoidable effect ... [was] to prejudice
         the jury, forming in their minds fixed bias and hostility
         toward the defendant so that they could not weigh the
         evidence objectively and render a true verdict. Further,
         the allegedly improper remarks must be viewed in the
         context of the closing argument as a whole.

Commonwealth v. Luster, 71 A.3d 1029, 1048 (Pa. Super. 2013) (en

banc) (internal quotation marks and citations omitted).

     After reviewing the transcript, we agree with the trial court’s analysis:

     In this case, the [c]ourt’s decision to not declare a mistrial based
     on statements made during the Commonwealth’s closing
     argument was not an abuse of discretion. The assistant district
     attorney’s comment that [Frantz] introduced [the victim] to the
     world of sex must be considered in its context, which includes
     analyzing the statement in light of arguments advanced by
     defense counsel in closing. The defense in this case was based
     essentially upon the notion that the Commonwealth could not
     prove, beyond a reasonable doubt, when any of the incidents
     occurred. The defense sought to portray [the victim] as
     “confused” and attempted to point out various inconsistencies in
     her testimony to show that her memories of the sexual activities
     with [Frantz], and her age at the time they occurred, were “a
     little bit off and little bit skewed.” For instance, in an effort to
     show that [the victim]’s testimony and memory of the sex acts
     that occurred between her and [Frantz] was faulty, defense
     counsel stated the following in his closing argument:

         [The victim] testified that [the father of her first child]
         was in and around at the time that all this was going on.
         So might some of these memories be confused with [the
         father] and what was going on … She got pregnant when
         she was 15 years old. [This other man was the father.]
         She didn’t know it at the time. And, in fact, probably
         wasn’t sure – probably wasn’t sure about it, wasn’t sure
         about it at the time of the complaint.


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          A fair reading of the Commonwealth’s closing argument
          demonstrates that the district attorney, by stating that [Frantz]
          introduced the victim to the world of sex, was simply linking the
          facts and the law to explain how [Frantz] was, in fact, guilty of
          the charge of corruption of minors. The statement, considered in
          context, advanced the argument that [Frantz], being at least 18
          years old corrupted the moral of a minor, [the victim], by
          repeatedly engaging in a variety of sexual acts with her over a
          two year period. The assistant district attorney’s comments
          related to evidence which was elicited directly from the victim on
          direct examination and during cross-examination.

          Additionally, the statement was a rebuttal to defense counsel’s
          assertion that [the victim]’s memory of when the incidents
          occurred was skewed or that she could have been conflating
          sexual relations she had with …, the father of her first child, with
          those she had with [Frantz]. By stating that the evidence
          showed that [Frantz] introduced the victim to the world of sex by
          pointing out that the abuse started when [the victim] was just
          14 years old and did not stop until she was pregnant at age 15,
          the assistant district attorney rebutted defense counsel’s
          argument that the Commonwealth failed to prove beyond a
          reasonable doubt that [the victim] was less than 16 years old at
          the time she was repeatedly sexually abused by [Frantz].

          Therefore, in the context of the argument as a whole, the
          challenged statements made by the Commonwealth during
          closing argument were not of the type of kind to have the
          unavoidable effect of prejudicing the jurors by forming in their
          minds a fixed bias or hostility against [Frantz] in such a manner
          as to have impeded their ability to weigh the evidence
          objectively and render a true verdict. … Moreover, the jury was
          properly instructed that the arguments of counsel were not
          evidence and that it was their task, and their task alone, to
          apply the law to the facts as they found them.

Trial Court Opinion, 8/17/2016, at 11-13. Frantz’s second issue merits no

relief.

          Judgment of sentence affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2017




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