J-S71006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 IAN HYATT                                :
                                          :
                   Appellant              :    No. 2665 EDA 2018

      Appeal from the Judgment of Sentence Entered August 23, 2018
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0002152-2017


BEFORE: BOWES, J., MURRAY, J., and McLAUGHLIN, J.

MEMORANDUM BY BOWES, J.:                                  Filed: April 30, 2020

     Ian Hyatt appeals from his judgment of sentence of six to twelve years

of imprisonment, imposed after he was convicted of rape of an unconscious

person and related charges. After thorough review, we affirm.

     The trial court summarized the factual history of this case as follows:

           On February 21, 2017, [Victim] had dinner and two or three
     cocktails with a friend. She returned home to 822 North Preston
     Street in West Philadelphia, where she had been living with
     [Appellant] and three other house mates in a rooming house for
     two or three weeks. She went to her room to change into pajamas
     and take her prescribed insomnia medication, and then agreed to
     watch a movie with [Appellant] in their communal living room.
     She fell asleep on the living room couch soon after the movie
     began, briefly waking up once when a pizza arrived.

           Sometime later, [Victim] woke up on her living room couch
     to find that her pants and underwear were pulled down to the
     middle of her thighs, and [Appellant] was positioned behind her,
     penetrating her vagina with his penis. [Victim] . . . . testified that
     she was unconscious when [Appellant] began to engage in sexual
     intercourse with her, and that she did not consent to sexual
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      intercourse or any other sexual activity with [Appellant] at any
      time that evening.     She immediately said two things to
      [Appellant], in some order: “What the fuck,” and “Are you
      wearing a condom?”

           She jumped from the couch, ran upstairs, and searched
      Google for “what to do if you get raped.” Based on her research,
      she contacted Women Organized Against Rape (hereinafter
      WOAR) and took an Uber to the Hospital of the University of
      Pennsylvania. There, she met with a WOAR representative and
      gave a urine sample, and a police officer arrived to transport her
      to the Special Victims Unit, where she received a rape
      examination. [Appellant] was arrested a few hours later.

Trial Court Opinion, 3/5/19, at 2-3 (footnotes and citations omitted).

      Appellant was charged with rape of an unconscious person, sexual

assault, indecent assault of an unconscious person and unlawful restraint.

Prior to trial, the Commonwealth served notice of its intention to present

evidence that Appellant had previously assaulted another woman, S.H. in a

similar fashion. Specifically, the Commonwealth sought to introduce evidence

that, on April 30, 2016, S.H. told police that she was inside Appellant’s

bedroom with Appellant. They smoked marijuana together, but earlier she

had consumed beer and taken two Tylenol P.M tablets. She fell asleep, and,

sometime thereafter, awoke to Appellant engaging in vaginal intercourse with

her without her consent. Appellant had made sexual advances prior to the

assault and S.H. had explicitly rejected him. Although charges were filed,

they were withdrawn after S.H. failed to appear.




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       Appellant filed a response to the Commonwealth’s motion and, following

a hearing, the trial court granted the Commonwealth’s motion.1             Appellant

proceeded to trial at which both, S.H. and Victim testified for the

Commonwealth. Appellant called two character witnesses and testified in his

own defense, claiming that Victim was fully conscious and consented to having

sexual intercourse with him. The jury found Appellant guilty on all counts,

and on August 23, 2018, the trial court sentenced Appellant to six to twelve

years of incarceration.

       Appellant    filed   a   timely    post-sentence    motion   challenging   the

admittance of S.H.’s testimony, the sufficiency and weight of the evidence,

and the discretionary aspects of his sentence.            The trial court denied the

motion without a hearing and 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:

       1.     Whether the trial court erred in granting the Commonwealth
              of Pennsylvania’s [m]otion to [a]dmit a prior bad act
              involving Appellant and another individual named S.H.

       2.     Whether there was sufficient evidence presented warranting
              the verdict of guilty on the charge of rape of an unconscious
              person, sexual assault[,] and indecent assault of a person
              unconscious.


____________________________________________


1 The Commonwealth filed a second motion in limine seeking to admit
evidence as consciousness of guilt that, after arrest, Appellant assaulted
multiple police officers and repeatedly told them to “kill me.”       See
Commonwealth’s Notice of Intent, 6/6/18, at 1. Appellant filed a response
and the trial court denied the motion without a hearing.

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      3.    Whether the jury’s verdict of guilty on the charges of rape
            of an unconscious person, sexual assault[,] and indecent
            assault of a person unconscious was against the weight of
            the evidence.

      4.    Whether the trial court abused its discretion in sentencing
            Appellant to six to twelve years of incarceration which was
            an aggravated sentence and beyond the top of the standard
            guideline range of sixty-six months.

Appellant’s brief at 7.

      In his first claim, Appellant argues that the trial court erred when it

admitted S.H.’s testimony about a prior sexual assault perpetrated by

Appellant. Id. at 16. We consider Appellant's challenge to the admission of

the testimony mindful of our standard of review:

      The admissibility of evidence is a matter addressed to the sound
      discretion of the trial court and . . . . an appellate court may only
      reverse upon a showing that the trial court abused its discretion.
      As abuse of discretion is not a mere error in judgment but, rather,
      involves    bias,    ill  will,  partiality,    prejudice,   manifest
      unreasonableness, or misapplication of law.

Commonwealth v. Cox, 115 A.3d 333, 336 (Pa.Super. 2015) (internal

citations and quotation marks omitted). Additionally, we note that we may

affirm the trial court’s ruling on any basis supported by the record.         See

Commonwealth v. Johnson, 160 A.3d 127, 144 (Pa. 2017).

      Appellant attacks the admission of S.H.’s testimony as improper

propensity evidence that does not meet the common plan exception to Pa.R.E.

404(b). See Appellant’s brief at 16-28. Further, he alleges that its prejudicial

impact far outweighed any probative evidentiary value. Id. at 29-32

      Under Rule 404(b):

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     (1) Evidence of other crimes, wrongs, or acts is not admissible to
     prove the character of a person in order to show action in
     conformity therewith.

     (2) Evidence of other crimes, wrongs, or acts may be admitted for
     other purposes, such as proof of motive, opportunity, intent,
     preparation, plan, knowledge, identity or absence of mistake or
     accident.

     (3) Evidence of other crimes, wrongs, or acts proffered under
     subsection (b)(2) of this rule may be admitted in a criminal case
     only upon a showing that the probative value of the evidence
     outweighs its potential for prejudice.

Pa.R.E. 404(b).

     By introducing the testimony into evidence, the Commonwealth

revealed Appellant’s prior arrest, and the reasons for it, to the jury. When

reviewed in light of Pa.R.E. 404(b), this evidence constituted evidence of

another crime committed by Appellant.        However, the Commonwealth

contends that the evidence was properly admitted as it falls within the

common plan, scheme or design exception. See Commonwealth’s brief at 6-

12; see also Pa.R.E. 404(b)(2). We agree.

     A determination of admissibility under the common plan exception

     must be made on a case by case basis in accordance with the
     unique facts and circumstances of each case. However, we
     recognize that in each case, the trial court is bound to follow the
     same controlling, albeit general, principles of law. When ruling
     upon the admissibility of evidence under the common plan
     exception, the trial court must first examine the details and
     surrounding circumstances of each criminal incident to assure that
     the evidence reveals criminal conduct which is distinctive and so
     nearly identical as to become the signature of the same
     perpetrator. Relevant to such a finding will be the habits or
     patterns of action or conduct undertaken by the perpetrator to
     commit crime, as well as the time, place, and types of victims

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      typically chosen by the perpetrator.           Given this initial
      determination, the court is bound to engage in a careful balancing
      test to assure that the common plan evidence is not too remote
      in time to be probative. If the evidence reveals that the details of
      each criminal incident are nearly identical, the fact that the
      incidents are separated by a lapse of time will not likely prevent
      the offer of the evidence unless the time lapse is excessive.

Commonwealth v. Cosby, 224 A.3d 372, 398 (Pa.Super. 2019) (quoting

Commonwealth v. Frank, 577 A.2d 609, 614 (Pa.Super. 1990)).

      Importantly, this Court has also permitted prior bad act evidence under

the common plan exception “to counter [an] anticipated defense of consent.”

Commonwealth v. Tyson, 119 A.3d 353, 361 (Pa.Super. 2015) (en banc).

In Tyson, the defendant was accused of rape and related offenses after he

allegedly engaged in sex with an unconscious acquaintance. The victim had

invited the defendant over to bring her soup because she was not feeling well.

Sometime after the defendant arrived, the victim fell asleep. She awoke to

find the defendant engaging in vaginal intercourse with her.      She told the

defendant to stop and he complied. She told the defendant she did not want

to have sex with him and fell back asleep. A short time later, she again awoke

to Appellant having sex with her. The defendant claimed that the victim was

conscious and had consented to having sex with him both times.

      In a motion in limine, the Commonwealth sought a ruling that it could

introduce the facts underlying the defendant’s prior rape conviction under the

common scheme exception. The trial court denied the motion, but on appeal

we reversed, noting that:


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     The factual overlap between the two incidents goes beyond the
     commission of crimes or conduct “of the same general class.” The
     evidence does not merely show [the defendant] sexually assaulted
     two different women or that [his] actions are generically common
     to many sexual assault cases. To the contrary, the incidents
     reflect a clear pattern where [the defendant] was legitimately in
     each victim’s home; [he] was cognizant of each victim’s
     compromised state; and [he] had vaginal intercourse with each
     victim in her bedroom in the middle of the night while the victim
     was unconscious.

Id. at 360. We also determined that the five-year lapse in time between the

rapes did not undermine the prior act’s probative value, because the

defendant was incarcerated for a majority of that time and because the

“similarities [between] the two incidents render[ed] the five-year time gap

even less important.” Id. at 361.

     Additionally, we held that the prior incident could be used to defeat an

anticipated defense of consent in a case of sexual misconduct under the

absence-of-mistake exception, reasoning that:

     [the defendant] disputes [the victim’s] account that she was
     asleep when [he] initiated sexual intercourse with her—[the
     defendant] maintains he thought [the victim] consented to the
     act. Given the relevant similarities between the two incidents,
     evidence of [the defendant’s] prior rape would tend to prove he
     did not “mistakenly believe” [the victim] was awake or gave her
     consent. [The defendant] was invited into [the victim’s] home for
     another reason, [he] knew [the victim] was in a compromised
     state, and [the victim] awoke to find [him] having vaginal
     intercourse with her. [The defendant’s] prior conviction would
     likewise show he had been invited into the home of an
     acquaintance, knew the victim was in a compromised state, and
     had non-consensual sex with the victim while the victim was
     unconscious. The prior conviction would tend to prove [the
     defendant] was previously in a very similar situation and suffered
     legal consequences from his decision to have what proved to be
     non[-]consensual vaginal intercourse with an unconscious victim.

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      Thus, the evidence would tend to show [the defendant] recognized
      or should have recognized that, as with [the prior woman raped
      by the defendant], [the victim’s] physical condition rendered her
      unable to consent.

Id. at 362–63.

      Here, the trial court relied heavily on the Tyson holding, declaring that

it was “directly on point,” and “binding authority.”   N.T. Motions Hearing,

1/26/18, at 12. We agree. As in Tyson, the factual similarities between the

two crimes here went beyond “the commission of crimes or conduct of the

same general class.” Tyson, supra at 357. As the trial court explained, both

crimes involved women in their twenties who were casual acquaintances of

Appellant. N.T. Motions Hearing, 1/26/18, at 12-13. Additionally, they spent

the night in a house where Appellant was present, took intoxicating

substances before the assaults, were unconscious at the time of the assaults,

and reported waking up with Appellant’s penis inside of their vaginas. Id.

The ten-month time lapse between the two crimes was much shorter than the

one present in Tyson. Finally, the defense position was that the victim was

awake and the sex was consensual. Id. at 7. Accordingly, as in Tyson, the

absence-of-mistake exception was an alternative avenue to admissibility.

      Moreover, Appellant has failed to persuade us that the probative value

was outweighed by the testimony’s prejudicial impact. The Commonwealth

limited its usage of the evidence to permissible grounds: to show a common

plan, scheme or design.      Further, the trial court provided a cautionary

instruction.     See N.T. Jury Trial, 6/13/18, at 172-73.           See also

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Commonwealth v. Jones, 683 A.2d 1181, 1201-02 (Pa. 1996) (finding that

a clear and unambiguous instruction can prevent prejudice). Accordingly, the

trial court did not err in granting the Commonwealth’s motion in limine.

      Appellant’s next claim challenges the sufficiency of the evidence to

support   his   convictions.     Specifically,     Appellant   alleges   that   the

Commonwealth presented insufficient evidence that Victim was unconscious

and that she did not consent to having intercourse with Appellant.              See

Appellant’s brief at 33-36.     Our standard of review when considering a

challenge to the sufficiency of the evidence is:

      [w]hether 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 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 finder 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.

Commonwealth v. Gause, 164 A.3d 532, 540-41 (Pa.Super. 2017)

(citations and quotation marks omitted).

      Upon a review of the certified record, the parties’ briefs, and the relevant

law, the trial court’s well-reasoned opinion properly delineates the elements

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that the Commonwealth needed to prove in order to convict Appellant of each

offense and describes how the evidence was sufficient to support each verdict.

Accordingly, we affirm Appellant’s judgment of sentence as to rape of an

unconscious person, sexual assault, and indecent assault of an unconscious

person on the March 5, 2019 Opinion of the Honorable Lucretia Clemons. See

Trial Court Opinion, 3/5/19, at 14-16 (discussing Appellant’s challenges to the

sufficiency of the evidence, listing the elements the Commonwealth needed to

prove in order to convict Appellant of each crime, and explaining that the

Victim’s testimony that she was unconscious and did not consent to having

sex with Appellant was sufficient to establish the challenged elements).

      Third, Appellant seeks a new trial on the ground that the verdict was

against the weight of the evidence, i.e., that the greater weight of the

evidence proved that the victim was not unconscious and that she consented

to having sex with Appellant. See Appellant’s brief at 37-40.

      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: [a]ppellate 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. 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. 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 and that a new trial should be granted in
      the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations omitted).

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      Appellant attacks the credibility of Victim’s testimony that she was

unconscious when Appellant began having sex with her and that she did not

consent to having sex with him. See Appellant’s brief at 37-40. Specifically,

Appellant argues that his own testimony, and that of his character witnesses,

was more persuasive and should have been afforded greater weight than

Victim’s testimony since she had ingested several medications and alcohol.

Id. at 37. In contrast to Victim, Appellant testified that he was in an ongoing

physical relationship with Victim and that she consented to and encouraged

him to have sex with her that night. Appellant’s character witnesses testified

to his law-abiding reputation in the community.

      The trial court, in denying Appellant’s claim, explained that

              The jury’s verdict neither surprised this [c]ourt nor
      disturbed its conscience: After hearing the evidence, this [c]ourt,
      too was persuaded beyond a reasonable doubt that [Appellant]
      engaged in sexual intercourse with [Victim] while she was
      unconscious and without her prior consent.        [Victim’s] trial
      testimony was credible and remained consistent with the
      information she relayed to several other Commonwealth
      witnesses who investigated her complaint.

               [Appellant’s] testimony and other evidence did not cast
      doubt on [Victim’s] testimony. [Appellant] conceded that he
      initiated sexual activity with [Victim] on the night in question.
      [Appellant] testified that he was “aggressively” sexually touching
      [Victim] while he was behind her on the couch, and she
      encouraged him to continue by “gyrating” against him and
      “moaning.” [Appellant] claimed that [Victim] believed that she
      was raped only because he did not use a condom while they had
      consensual sex, describing her reaction after five to ten minutes
      of intercourse as follows:

            She had turned around [during intercourse] and asked
            me, ‘Do you have a condom on?’ And that’s when I

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           said no. And she then asked me, ‘Did you come yet?’
           And I said no, not yet. And that’s when she pulled me
           out of her and she got very upset.

           She was like, ‘How could you do this to me? What are
           you doing?’. . . . And she said, ‘you know, you just
           like’ – she kind of had to think about [it] – ‘you kind
           of just, like, raped me.

           I was like, ‘what? Whoa. Hold on, hold on, hold on,
           hold on. [K.], I would never do that to you. You know
           we been chilling for this long, like, why would I even
           – why would I even think of doing that to you.’

               Aside from its self-serving nature, [Appellant’s] version
     of events was incredible in three key ways: First, although
     [Appellant] testified that [Victim] was only upset regarding his
     failure to use a condom and that [Victim] made no mention of her
     unconsciousness, he later implicitly admitted that he was aware
     before [Victim] went to the hospital and filed a police report that
     [Victim] claimed to be unconscious:

           Q. Did you talk to [Victim] between the time that she
           went to her room and . . . . before she left?

           A. She had come back downstairs and she had, you
           know, kept on asking me the same question.

           When she turned on the light and looked at me and I
           looked at her directly in her eye and I said, [Victim],
           I would never do this to you. You know, like we’ve
           been chilling for this long, and I’m not going to sit
           there and forcefully – or even do this intentionally.
           Like, wait until you fall asleep and then penetrate you.
           Like, it doesn’t make no sense.

     If, as [Appellant] claimed, [Victim] was fully conscious while they
     engaged in consensual sex, and if she only felt that she was raped
     because [Appellant] failed to wear a condom, then he would have
     had no reason to “look her directly in her eyes” and assure her
     that he would “never . . . . wait [for her to] fall asleep and then
     penetrate [her].” Second, [Appellant’s] description of his foreplay
     and [Victim’s] fully-conscious responsiveness, if true, made it
     unlikely that [Victim] would fail to notice whether her consensual

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      sexual partner paused to put on a condom, particularly if she
      cared about his condom usage. Third, [Appellant’s] description of
      a consenting partner who initially encouraged his sexual overtures
      and then withdrew because she eventually felt that he “kind of”
      raped her is at odds with the uncontroverted evidence supporting
      [Victim’s] immediate hue and cry – she made a 2 a.m. visit to the
      hospital, and none of the hospital records or police paperwork
      corroborates [Appellant’s] claim that [Victim] was upset about his
      condom usage rather than the fact that she was sleeping and did
      not consent to have sex with him.

Trial Court Opinion, 3/5/19, at 16-18 (citations omitted).

      Our review of the record reveals no indication of bias or ill-will on the

part of the trial court in its thorough analysis. Thus, the trial court did not

abuse its discretion by denying relief on Appellant’s weight claim, and

Appellant’s claim fails.

      Finally, Appellant alleges that the trial court abused its discretion when

it imposed a sentence that was six months above the standard guideline range

without considering any mitigating evidence. See Appellant’s brief at 48. This

is a challenge to the discretionary aspects of Appellant’s sentence, and as

such, the following principles inform our consideration of whether review of

this claim is warranted.

      An appellant is not entitled to the review of challenges to the
      discretionary aspects of a sentence as of right. Rather, an
      appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction. We determine whether the
      appellant has invoked our jurisdiction by considering the following
      four factors:

            (1) whether appellant has filed a timely notice of
            appeal; (2) whether the issue was properly preserved
            at sentencing or in a motion to reconsider and modify
            sentence; (3) whether appellant’s brief has a fatal

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              defect; and (4) whether there is a substantial question
              that the sentence appealed from is not appropriate
              under the Sentencing Code.

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa.Super. 2014)

(citations omitted).

       Appellant filed a motion for reconsideration of his sentence and a timely

notice of appeal. Appellant’s brief contains a statement of reasons relied upon

for his challenge to the discretionary aspects of his sentence as required by

Pa.R.A.P. 2119(f).       In his statement, Appellant claims that a substantial

question is presented by the fact that the trial court imposed an aggravated

range sentence that was manifestly excessive and failed to properly explain

why it aggravated his sentence. See Appellant’s brief at 14-15.2

       We find that this claim raises a substantial question as it challenges the

adequacy of the reasons given by the trial court for its sentencing choice. See

Commonwealth v. Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005)

(concluding substantial question raised by allegation that sentencing court



____________________________________________


2  Appellant also appears to attack the trial court’s alleged improper
consideration of the fact that Appellant had been accused of having sex with
an unconscious person before the charges in this case arose. See Appellant’s
brief at 15. However, Appellant did not raise this issue below. Therefore, the
trial court never had the opportunity to address it and we are barred from
considering it now. See Commonwealth v. Johnson, 33 A.3d 122, 126
(Pa.Super. 2011) (“It is axiomatic that claims not raised in the trial court may
not be raised for the first time on appeal”). Regardless, Appellant would not
be entitled to relief, since the trial court considered the prior allegations in the
context of Appellant’s potential for rehabilitation, a factor that it was required
to consider. See 42 Pa.C.S. § 9721(b).

                                          - 14 -
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imposed aggravated-range sentence without considering mitigating factors).

Accordingly, we now turn our attention to Appellant’s challenge to his

sentence.

      The following principles apply to our substantive review of Appellant’s

claim.   “When reviewing sentencing matters, this Court must accord the

sentencing court great weight as it is in the best position to view the

defendant’s character, displays of remorse, defiance or indifference, and the

overall effect and nature of the crime.” Commonwealth v. Ventura, 975

A.2d 1128, 1134 (Pa.Super. 2009).        “We cannot re-weigh the sentencing

factors and impose our judgment in the place of the sentencing court.”

Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009). Rather,

we review the trial court’s determination for an abuse of discretion.

      In this context, an abuse of discretion is not shown merely by an
      error in judgment. Rather, the appellant must establish, by
      reference to the record, that the sentencing court ignored or
      misapplied the law, exercised its judgment for reasons of
      partiality, prejudice, bias or ill will, or arrived at a manifestly
      unreasonable decision.

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).

      A trial court’s sentence “should call for confinement that is consistent

with the protection of the public, the gravity of the offense as it relates to the

impact on the life of the victim and on the community, and the rehabilitative

needs of the defendant.” 42 Pa.C.S. § 9721(b). “When imposing sentence, a

court is required to consider the particular circumstances of the offense and

the character of the defendant. In considering these factors, the court should

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refer to the defendant’s prior criminal record, age, personal characteristics

and potential for rehabilitation.”   Antidormi, supra at 761 (citations and

quotation marks omitted). Finally, when the trial court has been informed by

a pre-sentence report, it is presumed that the court acted reasonably.

Commonwealth v. Bullock, 170 A.3d 1109, 1126 (Pa.Super. 2017).

      Pursuant to 42 Pa.C.S. § 9781(c), we can vacate and remand only if we

find (1) that the court intended to sentence within the guidelines, but “applied

the guidelines erroneously;” (2) a sentence was imposed within the guidelines,

“but the case involves circumstances where the application of the guidelines

would be clearly unreasonable;” or (3) “the sentencing court sentenced

outside the sentencing guidelines and the sentence is unreasonable.”           42

Pa.C.S. § 9781(c). The instant sentence is in the aggravated range of the

guidelines and therefore must be affirmed unless the sentencing court’s

application of the guidelines was unreasonable. While reasonableness is not

defined in the statute, it “commonly connotes a decision that is ‘irrational’ or

‘not guided by sound judgment.’” Commonwealth v. Walls, 926 A.2d 957,

963 (Pa. 2007).

      Appellant argues that his sentence was greater than necessary to

protect the public, focused solely on retribution, and the court did not consider

any mitigating factors. See Appellant’s brief at 44-48. However, Appellant

fails to establish that the instant sentence was unreasonable. Appellant has

not identified the mitigating factors that the trial court failed to consider, and


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the certified record demonstrates that the court validly relied on several

factors in electing to impose a sentence above the guidelines, all of which

followed the general principles outlined in § 9721(b).

         In fashioning the judgment of sentence, the trial court started by listing

all of the evidence that it considered in fashioning its sentence, which included

testimony from every stage of the trial, the pre-sentence investigation report,

a mental health evaluation, the testimony presented by Appellant’s witnesses

at sentencing, the sentencing guidelines, and the statutory factors that it was

required to consider. N.T. Sentencing Hearing, 8/23/18, at 28. The court

found highly relevant Appellant’s allocution, which it felt demonstrated that

Appellant did not appreciate the impact that his actions had on the victim. Id.

at 28.

         The court also stated that it considered all of the mitigating

circumstances Appellant presented. Id. at 28. At sentencing, the court heard

from Appellant’s sister, mother, father, and godmother. Id. at 10-15. All of

the witnesses testified that Appellant had a long history of mental health and

drug issues that continuously needed to be addressed. Id. Additionally, trial

counsel argued that the fact that Appellant had a zero prior record score, a lot

of family support, a high school diploma, and was only twenty-five years old,

should all be considered as persuasive mitigation evidence.           Id. at 5-8.

Therefore, our review confirms that the trial court considered Appellant’s

mitigating factors, and determined that they were entitled to little or no weight


                                       - 17 -
J-S71006-19


under the circumstances.      We have no license to reweigh the mitigating

circumstances against the aforementioned factors. Macias, supra at 778.

      Nor did the trial court fail to place on the record its reasons for imposing

a sentence above the standard range of the guidelines. This court offered the

following explanation for its decision:

             Before I impose sentence, [Appellant], I need to say
      something to you. The most distressing thing about this case to
      me is that you continue to not understand what you did was
      wrong. It is clear to me that you do not get it. She may have
      flirted with you. She may have led you on. She could have done
      any of those things. She was asleep. You do not get to have sex
      with a woman who is asleep. It’s against the law.

             The other victim who came in and said she was asleep, had
      the same issue. And so it was clear to me that you understood
      from the first case that there’s a problem with having sex with
      someone who is asleep, even if you have engaged in a prior sexual
      activity. And this isn’t about what people think about on TV as
      rape, somebody dragging somebody in the alley, meeting some
      stranger -- that is not how most rapes happen. Most rapes happen
      just like we heard in this case. What you did was wrong, and you
      need to fully embrace and understand that. What you did was
      wrong. There are no excuses. There is no explanation. What you
      took from this woman can never be given back to her. Never.
      And I’m going to sentence you in a moment, and that may bring
      her some solace, but I guarantee you that she would rather go
      back the day before this happened than have you sit in jail. That
      doesn’t give her life back. It may give her some sense of justice,
      but it doesn’t give back what you took. You took something from
      her that she can never get back. And you need to accept that.
      That doesn’t mean you’re beyond rehabilitation. It doesn’t mean
      you aren’t the person your family so eloquently spoke about.
      You’re both things. You’re a great son. You’re a loving brother.
      You’re a talented artist. You’re kind. You help homeless people.
      And you raped her. Most people are contradiction[s]. You are
      contradiction. You are all of those things. You are all of those
      things and a rapist. You need to understand what it is that drove
      you coming from a family like this to do what you did. Because I
      am concerned that when you are released -- and everybody

                                     - 18 -
J-S71006-19


       virtually gets out of jail -- that you may make the same mistake,
       because you lack insight into your behavior. You lack insight. You
       don’t understand what you did wrong, and that’s terrifying.

              That being said, I’m going to give you a slightly aggregated
       [sic] sentence based on the mitigating factors that were presented
       here.    You had both mitigation, but you also had some
       aggravation. So I am going to sentence you to a term of six to
       12 years.

Id. at 28-31.

       The record establishes that the trial court took into account the relevant

factors and explained the reasons for its sentence. It was concerned that

Appellant did not understand that the victim’s level of interest in him while

she was conscious was irrelevant to her ability to consent to him when

unconscious. Thus, he remained a danger to the community. Further, it found

that Appellant’s actions had a severe impact on the victim who began to

“physically waste away” as a result of the assault.3       Trial Court Opinion,

3/5/19, at 27. Accordingly, the trial court acted well within its discretion when

it sentenced Appellant above the guidelines.

       Judgment of sentence affirmed.




____________________________________________


3 The victim testified at the sentencing hearing that she had been diagnosed
with PTSD and suffers from severe panic attacks and social anxiety as a result.
See Sentencing Hearing, 8/23/18, at 20. The victim also stated that she had
lost forty pounds, stopped getting a menstrual cycle, and experienced hair
loss as a result of the PTSD brought on by the assault. Id. at 21.

                                          - 19 -
J-S71006-19




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/20




                          - 20 -
                                                                                Circulated 04/13/2020 12:52 PM




                           IN THE COURT OF COMMON PLEAS
                          FOR THE COUNTY OF PHILADELPHIA
         ri                    CRIMINAL TRIAL DIVISION


COMMONWEALTH                                            COURT OF COMMON PLEAS
                                                        PHILADELPHIA COUNTY
VS.

IAN HYATT                                               NO. CP-51-CR-0002152-2017


                                              OPINION

                                         Lucretia Clemons, J.

       Defendant Ian Hyatt appeals from his judgment of sentence entered on August 23, 2018,

after a jury found the Defendant guilty of Rape of an Unconscious Victim under 18 Pa.C.S.       §


3121 (a)(3), Sexual Assault under 18 Pa.C.S.    §   3124.1, and Indecent Assault of an Unconscious

Person under 18 Pa.C.S.   §   3126 (a)(4). This Court imposed a sentence of six (6) to twelve (12)

years of incarceration, with credit.for time served and lifetime sex offense registration. On

appeal, Defendant challenges the admission of prior bad act evidence pursuant to Pa. R. E.      §


404(b), the sufficiency of the evidence, the weight of the evidence, and the aggravation of his

sentence six (6) months above the standard sentencing guideline range. For the reasons discussed

herein, this Court respectfully requests that the Superior Court affirm the jury's verdict and this

Court's judgment of sentence.
           FACTUAL HISTORY'

           On February 21, 2017, K.U. had dinner and two or three cocktails with a friend. N.T.

Trial 6/12, at 51-52. She returned home to 822 North Preston Street in West Philadelphia, where
                                                                                      for two
she had been living with the Defendant and three other house mates in a rooming house

or three weeks. Id. at 49? She went to her room to change into pajamas and take her prescribed

insomnia medication, and then agreed to watch a movie with the Defendant in their communal

living room. Id. at 51. She fell asleep on the living room couch soon after the movie began,

briefly waking up once when a pizza arrived. Id. at 53.

            Sometime later,3 K.U. woke up on her living room couch to find that her pants and

underwear were pulled down to the middle of her thighs, and the Defendant was positioned
                                                                                          testified
behind her, penetrating her vagina with his penis. Id. at 57. K.U. adamantly and credibly

that she was unconscious when the Defendant began to engage in sexual intercourse with her,

and that she did not consent to sexual intercourse or any other sexual activity with the Defendant

at any time that evening. Id. at 60-61. She immediately said two things to the Defendant, in some

order: "What the fuck," and "Are you wearing a condom?" Id. at 57.


                                                                                                   January
 'This Factual History is taken from the Notes of Testimony titled Prior Bad Acts, dated Friday
 26, 2018 (hereinafter "N.T. PBA Mot."); Trial (Jury) Volume I, dated June 11, 2018    (hereinafter  "NJ.
                                                                                                 (Jury)
 Trial 6/11"); Trial (Jury) Volume I, dated June 12, 2018 (hereinafter "N.T. Trial 6/12"); Trial
 Volume I, dated June 13, 2018 (hereinafter "MT. Trial 6/13"); Sentencing    Volume   I, dated August   23,
 2018 (hereinafter "NJ. Sentencing").

 2 K.U. testified that on the night she was raped, she had lived in the rooming house for "about two
 weeks." N.T. Trial 6/12, at 48. This was consistent with Officer Seabron's Special Victims Officer
 Memorandum. Id. at 46. She subsequently testified, however, that she moved into the house at the
                                                                                                      a
 "beginning of February," and that she had lived there for a few days before her house mates hosted
                                                                                                 K.U. was
 Super Bowl party. Id. at 64-65. In 2017, the Super Bowl occurred on February 5'h. Therefore,
 likely living there for closer to three weeks.
                                                                                                   Organized
      K.U. testified that they started watching the movie soon after 11 p.m., and she called Women
     Against Rape (hereinafter WOAR) at about 1:50 a.m. N.T. Trial 6/11, at 83.
                                                        2
                                                                               to do if you get
        She jumped from the couch, ran upstairs, and searched Google for "what
                                                                           Against Rape
raped." Id. at 57-58. Based on her research, she contacted Women Organized

(hereinafter WOAR) and took an Uber to the Hospital of the University
                                                                      of Pennsylvania. Id. at

                                                                              and a police
58-59, 84. There, she met with a WOAR representative and gave a urine sample,
                                                                                 a rape
officer arrived to transport her to the Special Victims Unit, where she received
                                                                             Phila. Police Dep't
examination. Id. at 58-59. The Defendant was arrested a few hours later. See

Investigation Report, Cmmw. Ex.        1,   at 3.

IL      PROCEDURAL HISTORY
                                                                                 rape of an
        On March 23, 2017, the Defendant was arraigned and pleaded not guilty to
                                                                                    On January
unconscious person, sexual assault, and indecent assault of an unconscious person.4

9, 2018, the Commonwealth filed a Motion in Limine, where it sought to
                                                                       introduce prior bad act

                                                                                  S.H. The
evidence of the Defendant's arrest in 2016 for the alleged rape of another woman,
                                                                                      26,
Defendant filed a brief opposing the Motion in Limine on January 24, 2018. On January
                                                                                       motion,
 2018, after hearing argument from both parties, this Court granted the Commonwealth's
                                                                                 arrest in its
 allowing the Commonwealth to introduce evidence regarding the Defendant's prior

 case-in -chief 5




                                                                                          restraint causing
 4 Before trial began, the Commonwealth nolle prossed a fourth charge for unlawful
                                                                        Trial 6/11,  at 164-65.
 serious bodily injury, pursuant to 18 Pa.C.S. § 2902(a)(1). See N.T.
                                                                                                      began, and
 'The Court heard the Commonwealth's second motion in limine on June 11, 2018, before trial
                                                                                     Commonwealth sought to
 denied it because the evidence was more prejudicial than probative. There, the
                                                                              approximately ten (10) to twelve
 introduce evidence of the Defendant's assault of multiple police officers
                                                                              arrested, as evidence of the
 (12) hours after he gave a statement to the Special Victims Unit and was
                                                                              The  Court denied this motion as
 history of the case, his consciousness of guilt, and his attempt to escape.
                                                                                          was permitted to
 more prejudicial than probative, see N.T. Trial 6/11, at 16, but the Commonwealth
                                                                                   infra.
  introduce this evidence at the Defendant's sentencing hearing. See pp. 25-26,
                                                        3
       On June 11, 2018, the Defendant proceeded to a Jury Trial. On that day, voir dire
                                                                                         was

completed and the Defendant was arraigned before the jury, Opening arguments began on
                                                                                      June

12, 2018, and the trial concluded on June 13, 2018. In all, there were nine Commonwealth

witnesses, including K.U. and S.H., and five defense witnesses, including the Defendant. The

jury deliberated for less than three hours before determining that the Defendant was guilty of
                                                                                               all


three charges.
                                                                                        the
        On August 23, 2018, this Court sentenced the Defendant. The parties agreed that

Defendant had a prior record score of zero (0) and that the offense gravity score for the lead

conviction of Rape of an Unconscious Victim is twelve (12), which generates a standard

sentencing guideline range of forty-eight to sixty-six months of incarceration, plus or minus up

to twelve months (shorthanded as 48-66 ± 12). See N.T. Sentencing, at 5. Noting that it

considered that both mitigating and aggravating factors influenced the Defendant's sentence, this

Court then sentenced the Defendant to seventy-two (72) months to one hundred and forty-four

(144) months of incarceration, id. at 31, which is an aggravated sentence six (6) months above

the standard sentencing guidelines.

        The Defendant promptly filed a Post -Sentence Motion on August 26, 2018, which raised
                                                                                            on
 the same four issues raised in this appeal. This Court denied the motion without a hearing

 September 7, 2018. The Defendant then filed a timely Notice of Appeal on September 11, 2018.

 On September 12, 2018, this Court filed a filed an order pursuant to Pa. R. A. P. 1925(b),

 instructing the Defendant to file a statement of errors. On September 14, 2018, the Defendant

 filed a Statement Pursuant to Pa. R. A. P.   §   1925(b). On or about December 13, 2018, this Court

 received the completed Notes of Testimony.



                                                      4
III.    THE DEFENDANT'S STATEMENT OF ERRORS

        The Defendant raises four errors upon appeal:

        1.        The trial court erred in granting the Commonwealth of Pennsylvania's
                                                                             Hyatt and another
                  Motion to Admit a prior bad act involving defendant Ian
                                                                            as the evidence
                  individual identified [as] S.H. under Pa. R. E. 404(b)[,]
                                                                                        to
                  was only offered to show a propensity on the part of the defendant
                                                                               person.
                  engage in nonconsensual intercourse with an unconscious
                                                                               verdict of guilty
        2.         There was insufficient evidence presented warranting the
                                                                                      and
                   on the charges of rape of an unconscious person, sexual assault
                                                                                         failed to
                   indecent assault of a person unconscious[,] as the Commonwealth
                   demonstrate the complainant was unconscious at the time
                                                                                of the alleged
                                                                     alleged  conduct   was
                   offense or that the complainant was unaware the
                   occurring. The evidence was also not sufficient to show
                                                                             the complainant
                   did not consent to have intercourse with the defendant.

         3.        The jury's verdict of guilty on the charges of rape of an unconscious
                                                                                         was
                   person, sexual assault and indecent assault of a person unconscious
                   against the weight of the evidence[,] where the complainant's
                                                                                   testimony
                                                                             and defendant
                   was equivocal regarding the happening of the accident
                                                                                         to
                   testified the parties had an on -going relationship and she consented
                   have sexual intercourse with him.
                                                                                   ] Ian Hyatt
         4.        The trial court abused its discretion in sentencing Defendant[
                                                                            aggravated   sentence
                   to six to twelve years of incarceration[,] which was an
                                                                                     (66)
                   and beyond the top of the standard guideline range of sixty-six
                                                                     for an aggravated  sentence.
                   months[,] and failed to explain the justification
                                                                        "Def. SOE").
 Def.'s Statement Pursuant to Pa. R. A. P. 1925(b), at 1-2 (Hereinafter

  IV.        DISCUSSION

             For the reasons below, none of these alleged errors has merit.
                                                                        to Pa. R. E.                 404(b).
                  The Defendant's Prior Bad Act Was Admissible Pursuant
                                                                                                 §
             A.
                                                                      bad act evidence during his
             The Defendant challenges this Court's admission of prior
                                                                                      prior arrest for
  trial. Def. SOE, at   1.   The Commonwealth argued that evidence of the Defendant's
                                                            be admissible in the Defendant's trial.
  his alleged rape of S.H. while she was unconscious should

   The Commonwealth alleged that on April 30, 2016          - less than ten (10) months before the
                                                        5
Defendant's alleged rape of K.U. - S.H. smoked marijuana, drank beer,
                                                                      and took two Tylenol

                                                                      to Admit Other
PM and fell asleep in the Defendant's bedroom. Cmmw.'s Mot. in Limine
                                                                   Mot."). Sometime after
Acts/Crimes Evidence, at 2, Jan. 9, 2018 (hereinafter "Cmmw.'s PBA
                                                                               with her without
she fell asleep, she "woke up to the Defendant engaging in vaginal intercourse

her consent." /d.6 S.H. told the police that the Defendant had made
                                                                    sexual advances that evening

before she fell asleep and that she rejected him. Id.
                                                                              to prove a person's
        Although le]vidence of a crime, wrong, or other act is not admissible
                                                                             accordance with the
character in order to show that on a particular occasion the person acted in

character," Pa. R. E.   §   404(b)(1), the Court did not admit this evidence as general proof of the
                                                                            Court admitted S.H.'s
 Defendant's bad character or his propensity to commit crimes. Instead, the
                                                                                common scheme
 testimony for two permissible purposes: First, it corroborates the Defendant's
                                                                                 unconscious.
 to initiate sexual intercourse with women without their consent while they were
                                                                           Defendant take the
 Second, the evidence could be introduced as rebuttal evidence, should the

 stand and open the door by claiming he did not rape anyone]


 6 This was the information available to the Court at the time of the motion.
                                                                              At trial, however, S.H.
                                                                                  6/13, at 41-43; see also
 testified to waking up after the Defendant had intercourse with her. N.T. Trial
                                                                               because there was semen on
 Investigation Interview Record of S.H., Cmmw. Ex. 26, at 2. She knew this
                                                                          was behind her on the bed in a
 her butt and inside of her vagina. N.T. Trial 6/13, at 42. The Defendant
                                                                                  at the time of this motion,
 spooning position. Id. Nevertheless, had the Court had the correct information
 it still would have made the same decision to admit S.H.'s testimony.
                                                                                  was admissible as proof of
   The Court also considered the Commonwealth's argument that this evidence
                                                                                         the Court believed
 the Defendant's lack of mistake in this offense. Cmmw.'s PBA Mot., at 7. Initially,
                                                                                  the  Defendant  claim that he
 that this was a permissible basis for introducing the bad act evidence-should
                                                                                     with   him while  she was
 mistakenly believed that K.U. was awake, or that K.U. could consent to have sex
                                                                             that his conduct was not likely a
 unconscious, then his prior arrest could have been introduced as evidence
                                                                             an unconscious woman. See
 mistake, and that he was put on notice that it was illegal to have sex with
                                                                               the Defendant did not testify
 Com. v. Tyson, 119 A.3d 353, 362-63 (Pa. Super. 2015). At trial, however,
                                                                                      time, and that she
  to making a "mistake"-instead, he claimed that K.U. was fully awake the entire
                                                                                        bad act evidence was
  fabricated her unconsciousness. See N.T. Trial 6/13, at 81-84. Therefore, the prior
  ultimately not admissible as lack of mistake evidence at trial.
                                                        6
               1.   The Defendant's Prior Alleged Rape of an Unconscious Woman is Admissible
                    as Evidence of a Common Plan.

                                                                                 admitted in this
       In ruling that the evidence, of Defendant's encounter with S.H. should be
                                                                    test: First, the Court
trial as evidence of a common plan, this Court applied a tripartite
                                                                       incident to assure that
"examine[d] the details and surrounding circumstances of each criminal
                                                                  nearly identical as to become
the evidence reveals criminal conduct which is distinctive and so
                                                                 353, 358-59 (Pa. Super. 2015)
the signature of the same perpetrator." Corn. v. Tyson, 119 A.3d
                                                              Super. 2007)). Second, the
(en banc) (quoting Com. v. G.D.M. Sr., 926 A.2d 984, 987 (Pa.
                                                                    probative." Id. at 359.
Court considered whether the evidence was "too remote in time to be

Third, the Court evaluated whether the "probative value of the
                                                               evidence [was] outweighed by its

potential prejudicial impact upon the trier of fact." Id.
                                                                                  and K.U. were
        First, the factual circumstances of the Defendant's alleged rapes of S.H.

"distinctive and so nearly identical" that they constituted "the signature
                                                                           of the same perpetrator."

See id. at 359. "Relevant to such a finding will be the habits or patterns
                                                                           of action or conduct

                                                                            and types of victims
 undertaken by the perpetrator to commit crime, as well as the time, place,
                                                                              to reflect the
 typically chosen by the perpetrator." Id. For prior conduct to be admissible
                                                                            general class. Com. v.
 defendant's "signature," it is not enough that they are crimes of the same
                                                                      admissible as evidence of a
 Semenza, 127 A.3d 1, 7 (Pa. Super. 2015). Rather, other offenses are
                                                                            tends to prove the
 defendant's common plan "where the crimes are so related that proof of one
                                                                           on other grounds by
 other[]." Id. (citing Com. v. Elliott, 549 Pa. 132, 145 (1997), abrogated

 Corn, v. Freeman, 573 Pa. 532 (2003)).
                                                                                       Court
         Commonwealth v. Tyson is strikingly similar to this case. There, the Superior
                                                                                motion to admit
 found that the trial court abused its discretion by denying the Commonwealth's
                                                                       trial for rape of a second
 evidence of the defendant's prior rape of an unconscious woman in his
                                                     7
                                                                                 rapes
unconscious woman. Tyson, 119 A.3d at 357. The Superior Court found that the two
                                                                                 women in
provided evidence of the defendant's common plan because both victims were black
                                                                                       bedrooms,
their twenties, both alleged rapes occurred in the early morning hours in the victims'
                                                                                  and both
the defendant was aware that both victims were in weakened or compromised states,

victims awoke to find the defendant having vaginal intercourse with them. Id. at 360.

Specifically, the Superior Court focused on the Defendant's common behavioral patterns:

        The factual overlap between the two incidents goes beyond the commission of
        crimes or conduct of the same general class. The evidence does not merely show
        Appellee sexually assaulted two different women or that Appellee's actions are
        generically common to many sexual assault cases. To the contrary, the incidents
        reflect a clear pattern where appellee was legitimately in each victim's home;
        Appellee was cognizant of each victim's compromised state; and Appellee had
        vaginal intercourse with each victim in her bedroom in the middle of the night
        while the victim was unconscious.

Id.
        Here, the motion in limine record indicated that there were many similarities between the

Defendant's alleged encounters with S.H. and K.U.: First, the Defendant had personal
                                                                                     and he
relationships with both women - he had a prior consensual sexual history with S.H.,8
                                                                                    each
 lived with K.U. Cmmw.'s PBA Mot., at 1-2, 6. Second, the Defendant allegedly raped
                                                                                         room as
 victim in his own home. Id. at 1-2. Third, both women allegedly fell asleep in the same
                                                                                     each woman
 the Defendant while voluntarily spending time alone with the Defendant. Id. Fourth,
                                                                                    intercourse
 allegedly woke up to find that the Defendant was engaging or had engaged in sexual

 with her without her consent. See id. at 1-2; but see n.6, supra (correcting factual inaccuracy).
                                                                                      substances
 Fifth, each woman reported that she voluntarily took medications and/or intoxicating



 8See Def. Resp. to Cmmw.'s PBA Mot., at 2, 6. K.U. testified that she repeatedly
                                                                                    rejected his sexual
                                                                    she and the Defendant previously had
 advances, N.T. Trial 6/12, at 50, and S.H. testified that although
                                                                                        evening  preceding
 consensual sexual oral sex, she did not consent to any sexual activity with him on the
 her alleged rape. N.T. Trial 6/13, at 44.
                                                      8
                                                                          importance, the
before the assaults. See Cmmw.'s PBA Mot., at 1-2. Finally, and of lesser
                                                                  were of different races. See
complainants were both women in their mid-twenties, although they

id.; N.T. PBA Mot., at 3-4.
                                                                                     with S.H. and
        The Defendant attempted to differentiate the alleged facts of his encounters
                                                                              with                   whereas
K.U., focusing on three distinctions: First, he had a prior sexual experience
                                                                                           5.1-1.,


he had no prior sexual experiences with K.U.9 See Def.'s Resp. to
                                                                  Cmmw.'s PBA Mot., at 2, 6.

                                                                  whatever the Defendant's
This distinction was immaterial, as the Commonwealth claimed that
                                                                          evening before she fell
prior sexual relationship was with &H., she rejected his advances on that
                                                               television with her on the night
asleep. Second, the Defendant lived with K.U. and was watching
                                                                                    who was
 of the alleged rape, whereas "S.H. was a visitor with whom he had prior relations"
                                                                volition." Id. at 5-6. This
 "with her friend and wandered into defendant's room of her own

 distinction also made no difference - both S.H. and K.U. voluntarily spent
                                                                            time with the

                                                                    Defendant with different
 Defendant alone in his home.1° Third, the Commonwealth charged the

 crimes: For the alleged rape of S.H., he was charged with rape
                                                                by forcible compulsion; for the

                                                                  victim. Id. at 5-6. It was
 alleged rape of K.U., he was charged with rape of an unconscious
                                                                           so this appeared to be
 clearly documented, however, that S.H. reported that she was unconscious,
                                                                             Cmmw. Ex. 26, at 2.
 an error in the information. See, e.g., Investigation Interview R. of S.H.,
                                                                                   allegations and
          After considering all of the similarities and differences between S.H.'s
                                                                             prior sex offenses as
 K.U.'s allegations, and evaluating case law concerning the admissibility of


                                                                                   focused on his romantic and
 9  Although this was a distinction made at the motion hearing, the Defendant
                                                                                     with benefits." See
  sexual interest in K.U. at trial, and characterized their relationship as "friends
  discussion infra at p. 19.
  1° A similar distinction made no material difference
                                                          in Tyson. There, the defendant wandered into the first
                                                                                     invited him to her home to
  victim's bedroom while he was at a friend's party, whereas the second victim
  deliver food when she was ill. 119 A.3d at 356.
                                                        9
                                                                      and K.U.'s testimony, if
evidence of a common plan or scheme, the Court determined that S.H.'s
                                                                                with the
found credible by the jury, reflect the same scheme: both women were acquainted
                                                                         engaged in
Defendant and voluntarily spent time with him in his home, neither woman
                                                                                then waited
consensual sexual conduct with him on the nights in question, and the Defendant
                                                                            they were unable to
until both women fell asleep to initiate sexual intercourse with them while
                                                                               intentional
communicate their consent or refusal. This specific pattern of the Defendant's
                                                                           the same general class
behavior indicates that these acts were not merely criminal allegations of

of sex crimes.
                                                                                    not too
        Second, the Court determined that the Defendant's alleged prior bad act was
                                                                            a prior bad act is
remote in time to be probative of his rape of K.U. When considering whether

too remote in time to be admissible for its probative value, "the importance
                                                                             of the time period is

                                                                                      990 A.3d
 inversely proportional to the similarity of the crimes in question." Com. v. Aikens,

 1181, 1185 (Pa. Super. 2010). The Defendant allegedly raped S.H. on or
                                                                        about April 30, 2016.

                                                                                 these
 The Defendant raped K.U. on or about February 22, 2017. The gap in time between
                                                                                 Commonwealth
 offenses was a bit less than ten (10) months. 11 In sex offense cases where the
                                                                                 gaps between
 seeks to introduce evidence of the defendant's prior sex offenses, several year
                                                                                 v. Tyson, 119
 similar sex offenses generally do not raise a remoteness issue. See, e.g., Com.
                                                                                      for the first
 A.3d at 357 (finding that five years between the end of the appellee's incarceration
                                                                        990 A.2d at 1186
 rape and the second alleged rape was not too remote); Corn. v. Aikens,
                                                                                  earlier was
 (holding evidence of defendant's prior rape of his biological daughter ten years




                                                                                            for the alleged
 " The gap was only eight (8) months from the end of the Defendant's pretrial incarceration
 rape of S.H. on June 16, 2016 and his rape of K.U. See MC -51 -DR.-0012524-16,
                                                                                 at p. 5.

                                                     10
                                                                                   the fact patterns
admissible at trial for indecent contact with his other biological daughter, where

in the two assaults were markedly similar).
                                                                                       its
        Third, although S.H.'s testimony was undoubtedly prejudicial to the Defendant,
                                                                                 (1) K.U.
probative value outweighed this prejudicial impact. The Defendant testified that
                                                                               and only
fabricated her unconsciousness; she instead engaged in consensual sex with him
                                                                                  that he was not
became upset about five to ten minutes into sexual intercourse, when she realized
                                                                                 her as a
wearing a condom; and that (2) he was sexually attracted to K.U. and cared about
                                                                                      86-87; see
person, so he had no desire to hurt her by raping her. See N.T. Trial 6/13, at 81-84,
                                                                                       then her
also discussion infra pp. 16-18. If the jury believed S.H.'s testimony to be credible,
                                                                                         engaged
account was probative of two general facts: First, it was more likely that the Defendant
                                                                                  likely that K.U.
 in a scheme of intentional conduct of targeting sleeping acquaintances, and less
                                                                                               the
 fabricated the fact that she was unconscious. Second, if credible, S.H.'s testimony impeached
                                                                                          S.H.
 Defendant's claim that he wouldn't rape a woman that he was sexually attracted to, since

 and the Defendant both conceded that they had prior consensual sexual activity. Thus,
                                                                                       S.H.'s

                                                                                     any
 testimony had considerable probative value, and that probative value far outweighed
                                                                             to both K.U.'s
 prejudicial impact upon the Defendant. Because S.H.'s testimony is relevant
                                                                                         probative
 credibility and the Defendant's theory of the case, the prior bad act evidence was more

 than prejudicial.
                                                                                           evidence
         This Court also attempted to mitigate the prejudicial impact of the prior bad act
                                                                                             the jury
 by providing a limiting instruction in its final jury instructions that explicitly informed

 that S.H.'s testimony was before it "for a very limited purpose, that is, for the
                                                                                   purpose of tending




                                                   11
                                                             that it could not be considered
to show the defendant's common plan, scheme and design," and
                                                            any crime. N.T. Trial 6/13, at 172.12
as indicating the Defendant's guilt or propensity to commit

                     2. The Defendant's Prior Alleged Rape of an Unconscious
                                                                             Woman is Admissible
                         As Rebuttal Evidence.
                                                                               this prior bad act
            Even if this Court erred by allowing the Commonwealth to introduce
                                                                      plan or scheme, this was a
evidence in its case -in -chief as evidence of the Defendant's common
                                                               would have opened the door to
harmless error,13 because the Defendant's testimony inevitably

the admission of S.H.'s testimony as rebuttal evidence.
                                                                             by presenting proof that
            Generally, "[a] litigant opens the door to inadmissible evidence

 creates a false impression refuted by the otherwise prohibited
                                                                evidence." Corn. v. Murphy, 182

                                                                 goes to the impeachment of
 A.3d 1002, 1005 (Pa. Super. 2018). "Where the evidence proposed
                                                                  matter of right. Rebuttal is proper
 the testimony of his opponent's witnesses, it is admissible as a
                                                                        Corn. v. Yocolano, 169
 where facts discrediting the proponent's witnesses have been offered."



 '2    This is the full instruction:
                                                                           accused of an offense for
             You have heard evidence that the defendant was previously
                                                                               to the effect that the
             which he is not on trial today. I'm speaking about the testimony
                                                                                 is before you for a very
             defendant sexually assault[ed] and/or raped [S.H.]. The evidence
                                                                                            common plan,
             limited purpose, that is, for the purpose of tending to show the defendant's
                                                                             you in any other way, other
             scheme and design. This evidence must not be considered by
                                                                              evidence as showing the
             than the purpose I halve] just stated. You must not regard this
                                                                                   which you might be
             defendant is a person of bad character or criminal tendencies from
             inclined to infer guilt.

 N.T. Trial 6/13, at      172-73.

                                                                                          or the prejudice was   de
  13
              Harmless error exists where: (1) the error did not prejudice the defendant
                                                                            cumulative  of other untainted
              tninimis; (2) the erroneously admitted evidence was merely
                                                                                      evidence;  or (3) the
              evidence which was substantially similar to the erroneously admitted                 the
                                                                                               and
              properly admitted and uncontradicted evidence of guilt was so overwhelming
                                                                                 that the error could not
              prejudicial effect of the error was so insignificant by comparison
              have contributed to the verdict.

      Com. v. Chmiel,    585   Pa.   547, 581-82 (2005)   (internal citation omitted),
                                                                12
                                                                 177, 212-13 (2013)). Defense
A.3d 47, 56 (Pa. Super. 2017) (quoting Corn. v. Ballard, 622 Pa.
                                                             Defendant take the stand and claim
counsel conceded during the motion in limine that should the
                                                                 admissible as rebuttal evidence.
that he did not rape anyone, the prior bad act evidence would be

N.T. PBA Mot., at 6. The Court also noted that Defendant
                                                         would not merely attack K.U.'s

                                                                    her unconsciousness, which is a
credibility, but he would specifically attack her credibility about
                                                                  found the Commonwealth's
central issue to the case. Id. at 7-9. For this reason, the Court
                                                               was conscious the entire time,
argument persuasive that, should the Defendant argue that K.U.
                                                                     his credibility.
S.H.'s testimony would be admissible as rebuttal evidence to impeach
                                                                            eager to engage in
        At trial, the Defendant testified that K.U. was fully conscious and
                                                                     raped her when she discovered
 consensual sexual activity with him, and that she only felt that he
                                                                      also characterized himself
 that he was not wearing a condom. See infra pp. 16-18. The Defendant

 as someone who would never intentionally do something like
                                                            "wait until [K.U. fell] asleep and

                                                                     to her and cared about her as a
 then penetrate [her]," particularly where he was sexually attracted
                                                                  opened the door to S.H.'s
 person. N.T. Trial 6/13 at 86-87. At these points, the Defendant
                                                                   fabricate her unconsciousness
 testimony, which tends to disprove the likelihood that K.U. would
                                                                       who would not do this to
 and contradict the Defendant's characterization of himself as someone
                                                                    194, 196-97 (Pa. Super. 1990)
 someone he is sexually attracted to. Cf. Corn. v. Powers, 577 A.2d
                                                                 on cross-examination that he had
 (holding rebuttal evidence admissible where defendant testified
                                                                   where the rebuttal evidence was
 never shown x -rated video tapes to any of his grandchildren, and
                                                                      Corn. v. Conte, 198 A.3d
  another grandchild's testimony that he showed her x -rated videos);
                                                                    sexual contact with another
  1169, 1179-80 (Pa. Super. 2018) (holding testimony of defendant's




                                                   13
                                                   defendant's testimony that he had "never
minor was admissible where it was offered to rebut
                                                        or any other child).14
been inappropriate" with his daughter (the complainant)
                                                           have been admissible to rebut the
       Therefore, because the prior bad act evidence would
                                                             during the Commonwealth's                 case-
Defendant's testimony, any error in admitting this testimony
                                                       was harmless error.
in -chief as evidence of the Defendant's common scheme

        B.       The Jury's Verdict Was Supported by Sufficient Evidence.
                                                                         of rape of an
        The Defendant next alleges that the jury convicted the Defendant
                                                             of an unconscious person" based
unconscious person,15 sexual assault,16 and indecent assault
                                                         to demonstrate the complainant was
 upon insufficient evidence, "as the Commonwealth failed
                                                            complainant was unaware the alleged
 unconscious at the time of the alleged offense or that the
                                                             to show the complainant did not
 conduct was occurring. The evidence was also not sufficient
                                                           SOE, at 1-2. Defendant's claim must
 consent to have intercourse with the defendant." See Def.



                                                                                                            to
 "It is possible that the Commonwealth     would have needed to ask a few questions of the Defendant
                                                            because S.H. testified before    the Defendant   did,
 provide a legal basis for the rebuttal evidence. Notably,
                                                            this issue, so the Commonwealth had no reason to
 defense counsel directly examined the Defendant about
                                                               e.g., N.T. Trial 6/13, at 89.
 repeat these questions in an attempt to open the door. See,
 15 To convict a defendant of rape
                                    of an unconscious person, the jury must believe beyond a reasonable
                                                               with the complainant; (2) the complainant was
 doubt that the defendant (I) engaged in sexual intercourse
                                                            occurring; and (3) the defendant knew or
 unconscious or unaware that the sexual intercourse was
                                                             unconscious or unaware. See 18 Pa.C.S. §
 recklessly disregarded the fact that the complainant was
                                                                § 15.3121B (4).
 3121(a)(4); Pa. Suggested Standard Crim. Jury Instruction
                                                                                                    that the
  16 To convict a defendant of sexual
                                       assault, the jury must believe beyond a reasonable doubt
                                                                         (2) the complainant did not consent to
  defendant (1) engaged in sexual intercourse with the complainant;
                                                            or at least recklessly regarding the complainant's
  the intercourse; and (3) the defendant acted knowingly
                                                             Standard Crim. Jury Instruction §15,3124.1(1).
  lack of consent. See 18 Pa.C.S. § 3124.1; Pa. Suggested
                                                                                                        beyond a
  17 To convict a defendant of indecent
                                         contact with an unconscious person, the jury must believe
                                                                   with the complainant; (2) the   complainant
  reasonable doubt that the defendant (I) had indecent contact
                                                                  at the time of the indecent contact; and (3) the
  was unconscious or unaware that the contact was occurring
                                                                               was unconscious or unaware. See
   defendant knew or recklessly disregarded the fact that the complainant
   18 Pa.C.S. § 3126(a)(4); Pa. Suggested Standard Crim.
                                                             Jury Instruction §15.3126B(1).

                                                         14
                                                     the jury, provided sufficient evidence to
fail, because K.U.'s testimony alone, if believed by

convict the Defendant.

       To evaluate the Defendant's challenge to the sufficiency
                                                                of the evidence, this Court

                                                           most favorable to the
"must determine whether, viewing the evidence in the light
                                                   reasonable inferences therefrom, the trier of
Commonwealth as verdict winner, together with all
                                                         beyond a reasonable doubt." Com. v.
fact could have found every element of the crime charged
                                                           supporting the verdict "is in
Wall, 953 A.2d 581, 584 (Pa. Super. 2008). If the evidence
                                                          human experience and the laws of nature,
 contradiction to the physical facts, in contravention to
                                                              v. Widmer, 560 Pa. 308, 319 (2000).
 then the evidence is insufficient as a matter of law." Corn.
                                                             reviewing courts do not "assess the
 Importantly, in evaluating the sufficiency of the evidence,
                                                           616 A.2d 681, 683 (Pa. Super. 1992).
 credibility or veracity of the evidence." Corn. v. Price,
                                                              in sexual intercourse with K.U. and
        It was undisputed at trial that the Defendant engaged
                                                        to have sex with him or whether he could
 that he did not explicitly ask K.U. whether she wanted
                                                                  claims that there was
 touch her sexually. See N.T. Trial 6/13, at 81-83. The Defendant
                                                        unconscious, that she was unaware that the
 insufficient evidence of three elements: that K.U. was
                                                          to have sexual intercourse with the
  intercourse was occurring, and that she did not consent
                                                              testimony alone. See Com. v.
  Defendant. The Defendant's allegations fail based on K.U.'s

  Gonzalez, 109 A.3d 711, 721 (Pa. Super. 2015) ("The
                                                           victim's uncorroborated testimony is

                                                                was clear and unequivocal: she was
  sufficient to support a rape conviction."). K.U.'s testimony
                                                         she was unaware of the sexual contact
  asleep when the Defendant initially penetrated her, so
                                                           consented to have sex with the
  until she woke up and refused it; she never at any point
                                                                 that evening. N.T. Trial 6/12, at
  Defendant; and she did not want to have sex with the Defendant



                                                   15
                                            sufficient evidence       to find the Defendant guilty of
61. K.U.'s testimony provided the jury with
                                                   indecent contact of an unconscious person."
rape of an unconscious person, sexual assault, and
                                                                of the Evidence.
          C.      The Jury's Verdict Was Not Against the Weight
                                                                 was against the weight of the
       The Defendant next alleges that the jury's guilty verdict
                                              was equivocal regarding the happening of the
evidence, "where the complainant's testimony
                                                    had an on -going relationship and she consented
accident and defendant testified [that] the parties
                                           SOE, at 2.
to have sexual intercourse with him." Def.
                                                             against the weight of the evidence, the
        When the trial court finds that the jury verdict was
                                                      to the evidence as to shock one's sense of
 court must believe that "the verdict was so contrary
                                                         Cam. v. Wall, 953 A.2d 581, 586 (Pa.
 justice and make the award of a new trial imperative."
                                                         "[w]hen the figure of Justice totters on her
  Super. 2008). A verdict shocks the judicial conscience
                                                      its rendition, causes the trial judge to lose his
 pedestal, or when the jury's verdict, at the time of
                                                      from the bench." Com. v. Davidson, 860 A.2d
 breath, temporarily, and causes him to almost fall
                                                 and citation omitted). "[T]he role of the trial
 575, 581 (Pa. Super. 2004) (internal quotations
                                                           certain facts are so clearly of greater
 judge is to determine that notwithstanding all the facts,
                                                   weight with all the facts is to deny justice."
 weight that to ignore them or to give them equal

  Com. v. Widmer, 560 Pa. 308, 320 (2000).

            The jury's verdict neither surprised this Court
                                                            nor disturbed its conscience: After hearing

  the evidence, this Court, too, was persuaded
                                               beyond a reasonable doubt that the Defendant

                                                    was unconscious and without her prior
  engaged in sexual intercourse with K.U. while she


                                                                   not credible, that argument is inappropriate
  18   If the Defendant intends to argue that K.U.'s testimony was
                                                            "a sufficiency challenge asks only whether
  for a review of the sufficiency of the evidence, because
                                                                  a conviction for rape. We may not assess the
  evidence exists on the record that, if believed, would support
                                                           616 A.2d 681, 683 (Pa. Super. 1992).
  credibility or veracity of the evidence." Dom. v. Price,
                                                         16
                                                          consistent with the information she
consent. K.U.'s trial testimony was credible and remained
                                                                 her complaint. See, e.g.,
relayed to several other Commonwealth witnesses who investigated
                                                             Report, Cmmw. Ex.        1,   at 1; Special
N.T. Trial 6/12, at 39-42; Phila. Police Dept. Investigation
                                                                  Cmmw. Ex. 16, at 2; Phila.
Victims Unit Officer's Mem., Cmmw. Ex. 7; Aff. of Probable Cause,
                                                        HUP Emergency Dep't Record,
Sexual Assault Response Ctr. Record, Cmmw Ex 23, at 10;

Cmmw. Ex. 25, at 2.
                                                                        on K.U.'s testimony.
        The Defendant's testimony and other evidence did not cast doubt
                                                                 on the night in question. The
The Defendant conceded that he initiated sexual activity with KU
                                                                 K.U. while he was behind her
Defendant testified that he was "aggressively" sexually touching
                                                                against him and "moaning."
 on the couch, and she encouraged him to continue by "gyrating"
                                                            believed that she was raped only
 N.T. Trial 6/13, at 81-82. The Defendant claimed that K.U.
                                                                           her reaction after
 because he did not use a condom while they had consensual sex, describing
                                                                    as follows:
 five to ten minutes of sexual intercourse, N.T. Trial 6/13, at 84,

         She had turned around [during intercourse] and asked me, 'Do
                                                                       you have a
                                                                          'Did you come
         condom on?' And that's when I said no. And she then asked me,
         yet?' And I said no, not yet. And that's when she pulled me out
                                                                         of her and she got
         very upset.
                                                                    doing?'        And she
         She was like, 'How could you do this to me? What are you
                                                                                  .   .


                                                                    about [it]    [Y]ou
         said, `[Y]ou know, you just like'-she kind of had to think
         kind of just, like, raped me.'
         I was like,`[W]hat? Whoa. Hold on, hold on, hold on, hold on. [K.], I would
                                                                         like, why would I
         never do that to you. You know, we been chilling for this long,
         even-why would I even think of doing that to you.'
 Id. at 83.
                                                                               was incredible in
         Aside from its self-serving nature, the Defendant's version of events
                                                                         K.U. was only upset
  three key ways: First, although the Defendant initially testified that
                                                                      of her unconsciousness, he
  regarding his failure to use a condom and that K.U. made no mention

                                                    17
                                                             to the hospital and filed a police
later implicitly admitted that he was aware before K.U. went

report that K.U. claimed to be unconscious:

       Q. Did you talk to [K.U.] between the time that she went
                                                                to her room and       .   .   .



       before she left?
                                                               kept on asking me the
        A. She had come back downstairs and she had, you know,
        same question.
                                                                       at her directly in her
        When she turned on the light and looked at me and I looked
                                                                          like we've been
        eyes and I said, [K.], I would never do this to you. You know,
                                                                                   even do
        chilling for this long, and I'm not going to sit there and forcefully-or
                                                                                you. Like, it
        this intentionally. Like, wait until youfall asleep and then penetrate
        doesn't make no sense.

Id. at 85 (emphasis added). If, as the Defendant claimed,
                                                          K.U. was fully conscious while they

                                                              raped because the Defendant failed
 engaged in consensual sex, and if she only felt that she was

 to wear a condom, then he would have had no reason to
                                                       "look her directly in her eyes" and

                                                                      then penetrate [her]." Second,
 assure her that he would "never .. wait [for her toj fall asleep and
                                     .




                                                                         responsiveness, if true,
 the Defendant's description of his foreplay and K.U.'s fully -conscious
                                                                        sexual partner paused to
 made it unlikely that K.U. would fail to notice whether her consensual
                                                                    Third, the Defendant's
 put on a condom, particularly if she cared about his condom usage.
                                                                  sexual overtures and then
 description of a consenting partner who initially encouraged his

 withdrew because she eventually felt that he "kind      of raped her is at odds with the
 uncontroverted evidence supporting K.U.'s immediate hue and
                                                             cry         - she made a 2 a.m.      visit to

                                                                    corroborates the Defendant's
 the hospital, and none of the hospital records or police paperwork
                                                                   fact that she was sleeping and
  claim that K.U. was upset about his condom usage rather than the
                                                                   pp. 16-17. For these reasons,
  did not consent to have sex with him. See Cmmw. Exs. cited supra

  the Defendant's testimony did not shift the weight of the evidence
                                                                     supporting his conviction.




                                                    18
                                                                                   and even in the
       As a final consideration, the defense strategy at trial, during sentencing,
                                                                      alleged sexual or romantic
phrasing of this error reflects a misguided preoccupation with K.U.'s
                                                                         consented to engage in
interest in the Defendant. There was no material evidence that K.U. ever

any overtly sexual activity with him. Despite the Defendant's vague
                                                                    testimony that they were

                                                                      N.T. Trial 6/13, at 69, 70,
"friends with benefits" and "maybe a little bit closer than friends."

117-18, neither party testified to sexual physical contact beyond the
                                                                      Defendant giving K.U. one

                                                           other,19 and no massage occurred on
or two massages during the three weeks that they knew each

the evening in question. The Defendant called two witnesses-his
                                                                father and his father's

                                                                     at a Super Bowl party and
fiancée-to testify that they observed the Defendant and K.U.
                                                                            party was two weeks
believed that the two appeared to have a flirtatious relationship, but this
                                                                        Defendant provided a
before this crime occurred. See N.T. Trial 6/12, at 209-10, 216-17. The
                                                                              and his arm is
 photograph from that party where he and K.U. are sitting together on a couch
                                                                     these background events,
 around her shoulders.2° Regardless of how the Defendant interpreted

 they do not shift the weight of the evidence: It is immaterial if K.U.
                                                                        expressed any romantic,

                                                                         before the rape. K.U.
 sexual, or friendly interest in the Defendant in the two or three weeks
                                                                           her and did not
 credibly testified that she was unconscious when the Defendant penetrated
                                                                              that testimony.
 consent to have sex with him, and she had no discernible motive to fabricate




                                                                               she was sore from the gym, but
 19 K.U. testified that the Defendant once gave her a back massage because
                                                                      The Defendant claimed that he also gave
 she did not consider it to be sexual. N.T. Trial 6/12, at 50, 67-68.
                                                                              in. N.T. Trial 6/13, at 73-74.
 her a foot massage while they watched TV about a week after she moved

 20 See Del Ex. 2. K.U. testified that she was
                                                "clearly uncomfortable" in the photo, N.T. Trial 6/12, at 64,
                                                                                   that photograph was taken.
 while the Defendant stated that she did not appear to be uncomfortable while
                                                                       the photograph provides no clear
 N.T. Trial 6/13, at 70-71. Regardless of which version is accurate,
                                                                           in nature.
 evidence of whether their relationships was more friendly or romantic
                                                      19
       For all of these reasons, the weight of the evidence strongly supports the jury's
                                                                           why this jury verdict
conviction of all three crimes charged, and the Defendant offers no reason

should have shocked the Court's conscience.

       D.       This Court Did Not Abuse Its Discretion by Aggravating the Defendant's
                Sentence Six Months Above the Standard Sentencing Guidelines Range.
                                                                                    it aggravated
       Finally, the Defendant alleges that this Court abused its discretion because
                                                                              "and failed to
the Defendant's sentence six (6) months above the standard guideline range,21
                                                                           Defendant's claim
explain the justification for an aggravated sentence." Def. SOE, at 2. The
                                                                                      Court's
must fail because it does not raise a substantial question that warrants the Superior
                                                                         the Defendant's
review of the discretionary aspects of Defendant's sentence: Contrary to
                                                                                         for this
assertion, the sentencing transcript reflects that this Court provided ample explanation
                                                                               however, this Court
 aggravated sentence. Even if the Defendant does raise a substantial question,

 did not abuse its discretion in sentencing the Defendant to an aggravated
                                                                           sentence, where, after

                                                                               evidence presented
 considering the entire trial record, several presentencing documents, and all
                                                                                     aggravated
 at the sentencing hearing, this Court made a reasoned determination that a slightly

 sentence was appropriate.

                 1.   The Defendant Fails to Raise A Substantial Question that Merits the
                                                                                          Superior
                      Court's Review of a Discretionary Sentence.

         Before it reaches the merits of a discretionary sentencing issue, the Superior Court

 applies a four-part threshold test to determine:

         (1) whether appellant has filed a timely notice of appeal; (2) whether
                                                                                the issue
         was properly preserved at sentencing or in a motion to reconsider and modify


   As stated above, this Court sentenced the Defendant to a minimum of seventy-two
                                                                                          (72) months (or six
 21
                                                                                   sentencing  range for this
 (6) years) of incarceration. Both parties agreed at sentencing that the standard
                                                                             is forty-eight to sixty-six months
 type of crime and the Defendant's lack of any prior criminal convictions
                                                                                           pp. 3-4, infra.
 of incarceration, plus or minus up to twelve months (shorthanded as 48-66 ± 12). See
                                                       20
          sentence; (3) whether appellant's brief has a fatal defect; and (4) whether there is
          a substantial question that the sentence appealed from is not appropriate under the
          Sentencing Code.

Corn. v. Levy, 83 A.3d 457, 467 (Pa. Super. 2013) (quoting Corn. v. Moury, 992 A.3d 162, 170

(Pa. Super. 2010)) (internal citations omitted). "A substantial question exists only when the

appellant advances a colorable argument that the sentencing judge's actions were either: (1)

inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental

norms which underlie the sentencing process." Corn. v. Glass, 50 A.3d 720, 727 (Pa. Super.

2012) (citations and internal quotation marks omitted).

          Here, a timely notice of appeal has been filed and the issue was preserved in a post -

sentence motion.' The Defendant, however, failed to raise a substantial question in either his

Post -Sentence Motion or his Statement of Errors, because this Court outlined all of the sources

that it reviewed in determining the Defendant's sentence, acknowledged that it considered both

aggravating and mitigating circumstances, and then elaborated at length on its primary reason for

aggravating the sentence. The Court listed the materials it reviewed in determining its sentence

as follows:

           the evidence introduced and the history, including during the pretrial hearing, the
           trial of this case, everything in the pre -sentencing report, the investigation of the
           prior record score, the mental health evaluation, which I have carefully reviewed;
           everything presented during the sentencing hearing, including all of the mitigating
           evidence presented on behalf of the defendant; the statement of the victim; the
           statements on behalf of the defendant; the sentencing guidelines and the statutory
           factors that I am required by law to consider, which include the need to protect the
           public, the gravity of the offense as it relates to the impact to the victim and the
            community, and the rehabilitative needs of the defendant.
 N.T. Sentencing, at pp. 28-29. Cf. Com. v. Mawhinney, 915 A.2d 107, 110 (Pa. Super. 2006)

 (upholding trial court's discretionary sentence where the court heard from both counsel and the


 22   This Court did not examine any appellate briefing and cannot opine on whether there are any defects.
                                                       21
defendant himself and stated on the record that "it had considered the presentence report, the

Sentencing Guidelines, and all of the trial testimony in fashioning the sentence," without further

elaborating on why the sentence was appropriate).

        After relaying the evidence it considered in crafting an appropriate sentence, the Court

then clearly communicated its primary reason for aggravating the Defendant's sentence:

        The most distressing thing about this case to me is that you continue to not
        understand what you did wrong. It is clear to me that you don't get it. [K.U.] may
        have flirted with you. She may have led you on. She could have done any of those
        things. She was asleep. You do not get to have sex with a woman who is asleep.
        It's against the law. The other victim who came in and said she was asleep[] had
        the same issue. And so it was clear to me that you understood from the first case
        that there's a problem with having sex with someone who is asleep, even if you
        have engaged in prior sexual activity .. You need to understand what it is that
                                                  .       .


        drove you[,] coming from a family like this[,] to do what you did. Because I am
        concerned that when you are released .. you may make the same mistake,
                                                      .




        because you lack insight into your behavior. You lack insight. You don't
        understand what you did wrong, and that's terrifying.

N.T. Sentencing, at 29-31. That the Defendant's lack of insight into his crime poses a danger to

the community was certainly not the only factor that this Court considered in fashioning an

appropriate sentence. Rather, it was the most straightforward explanation that this Court could

provide to the Defendant as to why he did not receive a guideline sentence, and it was what the

 Court felt the Defendant most needed to understand in order to begin his rehabilitation. The

 Defendant is not entitled to the trial court's exhaustive discussion of every aggravating,

 mitigating, and other factor that it evaluated before arriving at its reasoned conclusion that his

 crime warranted an aggravated sentence.

         For these reasons, the record does not corroborate the Defendant's bald assertion that this

 Court did not explain why it aggravated his sentence, and therefore, the Defendant fails to raise a

 substantial question that warrants review of the discretionary aspects of his sentence.


                                                      22
                 2.   In the Alternative, the Trial Court Appropriately Sentenced the Defendant Six
                      Months Above the Standard Sentencing Guidelines.

       The Court also stated on the record that it evaluated other factors, both mitigating and

aggravating, in ultimately fashioning an aggravated sentence. See N.T. Sentencing, at 31 ("I'm

going to give you a slightly aggregated sentence based on the mitigating factors that were

presented here. You had both mitigation .. [and] some aggravation."). It did not specify all of
                                                 .




these factors on the record. Should the Superior Court wish to reach the merits of the

Defendant's discretionary sentencing claim, this Court will now address those other factors that

it considered:

        Initially, the Court identified two factors that could potentially mitigate the Defendant's

sentence: First, the Court observed the Defendant's extensive familial support, and his older

sister, mother, father, and godmother provided glowing character references for the Defendant

and requested leniency.23 Second, the Court considered the Defendant's history of mental health

issues, including a prior diagnosis of Impulse Control Disorder. See Def.'s Presentence

Investigation Report - Psychiatric Report, at 4. Those mental health issues have resulted in three

involuntary commitments, where he did not follow up with outpatient treatment after his release.

Id. Thus, the Court was willing to believe, without additional evidence, that these mental health

issues were substantial and that the Defendant did not receive adequate treatment for those

issues. The Defendant, however, failed to specify how his mental health issues caused him to



23These witnesses generally described him as a kind, smart, and artistic person who cares about people
experiencing homelessness, people with disabilities, children, and animals. See N.T. Sentencing, at 10-16.
His sister, Tracy Hyatt, testified that his family knew "for quite some time that he's had a lot of mental
issues and [they have] been addressed multiple times throughout his life," and noted that the family is still
working on addressing those issues. Id. at 11. His mother testified that he is not malicious, and that this
crime is not like him. Id. at 13. His father, Vincent Hyatt, testified that he is a "gentle giant" who "doesn't
deserve to be locked away," and that this crime was "a mistake, poor judgment." Id. at 14.
                                                      23
rape K.U. More importantly, he did not explain how he would address these mental health issues

in the future to prevent himself from repeating what appears to be a pattern of initiating

nonconsensual sex with unconscious women.24 While this Court remains hopeful that the

Defendant is capable of addressing these issues over time and eventually reentering society, his

mental health history was fatally underdeveloped as mitigating evidence.

       Next, the Court evaluated considerable aggravating evidence: First, as discussed above,

the Defendant's inability to appreciate that what he did was illegal strongly indicates that he is

currently a danger to society. Second, K.U. experienced significant trauma as a result of the

Defendant's criminal actions.25 Third, the Court did not believe that the Defendant was

genuinely remorseful regarding the harm he caused K.U. or that he accepted responsibility for

his own actions: Although his victim -blaming behavior during trial could have been a misguided

strategy to discredit K.U.'s testimony,26 even during his allocution, the Defendant continued to



24 Counsel briefly referenced that the pre -sentence investigation "mention[ed] some mental health issues,
[including] the fact that he had been 302'd on two separate occasions." N.T. Sentencing, at 8. Two of the
character witnesses referenced the Defendant's mental health issues. Id. at 11, 15. The Defendant did not
mention his mental health issues during his allocution. See id. at 25-28.

25K.U. was formally diagnosed with post -traumatic stress disorder (PTSD) after she was raped, and at the
time of her sentencing testimony eighteen (18) months after the rape, she continued to suffer from many
PTSD symptoms, including panic attacks, social anxiety, a desire to be alone, and a fear of men. N.T.
Sentencing, at 20-21. Her other physical symptoms included extreme involuntary weight loss of about
forty pounds, hair loss and graying, and the cessation of her menstrual cycle for nearly one year. Id. at 21.
She also noted that she has not been able to tell her parents about the rape or trial because it "would
destroy them," which was very isolating. Id. at 21. The Commonwealth further noted that K.U. ultimately
had to move out of her new home due to the Defendant's assault, but she was trapped in that house for
two months afterwards because she could not afford to move. Id. at 24.
26For example, when defense counsel asked whether the Defendant ever saw K.U. take her insomnia
medication, he used the question as an opportunity to tell the jury that at some point, K.U. was a stripper.
See N.T. Trial 6/13, at 77-78. Similarly, he also claimed that on the evening he was accused of raping
S.H., he started touching her while she was sleeping, S.H. woke up and asked him what he was doing, the
Defendant replied that he wanted to have sex, and then she told him "I need a check," implying that she
wanted him to pay her to have sex with him. Id. at 96-97.
                                                     24
dwell on the "mixed signals" K.U. allegedly sent him.27 The Defendant also stated that he was

"sorry," but if he "really, really, really" wanted to rape K.U., he could have violently done so.28

He also failed to acknowledge at any point in his allocution that he was accused of raping K.U.

while she was unconscious. See id at 25-28. Overall, the Defendant's allocution impressed the

Court as a failure to accept what he was convicted of as "real" rape.

          Finally, this Court heard evidence of two issues that it ultimately categorized as neither

mitigating nor aggravating: First, the Defendant's professed marijuana use had no evidentiary

value in calculating his sentence, as the Defendant forwarded no evidence that his drug use had

any relevance to his actions. See N.T. Sentencing, at 9, 27. Second, this Court could not assign

any aggravating or mitigating value to the video that the Commonwealth played during

sentencing,29 which showed the Defendant escaping his cell room at the Special Victims Unit

after he gave a statement regarding his alleged rape of K.U., and then beating and disarming

several law enforcement or corrections officers. The video was muted, but the Court knew from

hearing the initial motion in limine for this evidence that while the Defendant did this, he


27
          I told her that I would never do nothing to her like that .. I look at my case and
                                                                       .




          I get so angry. Always just ask why? We could have talked about this, went about this a
          different way, but the little time that we did have together as friends, I really valued it.
          Because .. we connected on a lot of levels
                      .                                  ,   .I felt as though, you know, i[t] could
                                                                 .




          have been more     than just a friendship. Other people   don't see it that way. Mixed signals
          that I thought I was getting - you know, it just didn't register right.

N.T. Sentencing, at 26-27.
28
           Ido want to formally apologize to these [wo]men. I am very sorry. I never meant to hurt
          them. I didn't like force them to do anything. I am not like that type of person that's going to hold
          somebody down. You can see I am a big person. [K.U.] is half my size, if that. If I really, really,
                                               -
          really was going to do something do you understand what I am saying? I am not           -I
                                                                                                   would
          never do nothing to hurt her  .... I am not ... some weirdo.

N.T Sentencing, at 26.

29   See supra n.5.

                                                         25
repeatedly said "Kill me, just kill me." See Cmmw.'s Notice of Intent to Present Other Acts by

Del As Evidence of Consciousness of Guilt, at        2, June 6, 2018. Although the Commonwealth

argued that this was an attempt to escape and an admission of guilt, the Court was unable to draw

that conclusion, because the Defendant's actions were equally consistent with an attempt to

commit suicide by police, particularly given the combination of his history of mental health

issues with the stresses of criminal investigation and arrest. Moreover, the Court believed that

this event was adequately addressed when the Defendant plead guilty to three counts of

aggravated assault.3° Accordingly, this post-arrest event neither aggravated nor mitigated the

Defendant's sentence.

          Ultimately, although familial support and the Defendant's mental health history were two

generally mitigating factors, there was insufficient explanation for how that mitigating evidence

either contributed to this particular offense or informed a concrete plan for his rehabilitation.

This Court believes that this is not a "standard case" anticipated by the sentencing guidelines for

a person without a prior criminal record who rapes an unconscious person, particularly due to the

unique circumstances of the Defendant's prior arrest,31 the impact that it has had and will always

have on K.U.'s life, and the Defendant's current danger to society. First, the Defendant's prior

arrest put him on notice that if he has sex with an unconscious woman, he has committed rape, so

it is particularly troubling that he was arrested again for the same alleged behavior less than ten

months later. Second, not all sexual assault victims experience the same types or degree of harm,


30   See CP-51-CR-0004828-2017, CP-51-CR-0004858-2017, and CP-51-CR-0004859-2017.

3'"[T]he fact that a defendant is guilty of prior criminal conduct for which he escaped prosecution has
long been an acceptable sentencing consideration ... when there is evidentiary proof linking the
defendant to the conduct." Corn. v. P.L.S., 894 A.2d 120, 130 (Pa. Super. 2006). Relatedly, "[i]t is not
improper for a court to consider a defendant's prior arrests which did not result in conviction, as long as
the court recognizes the defendant has not been convicted of the charges." Id. at 131 (citation omitted).
                                                     26
and in this particular case, the Defendant's actions caused K.U. to experience severe PTSD and

physically waste away. Finally, and again, most importantly, the Defendant did not understand

that K.U.'s level of interest in him while she was conscious was irrelevant to her ability to

consent to him while she was unconscious. The Defendant's allocution about her mixed signals

made it obvious to this Court that, even after two arrests for rape of unconscious women and one

jury trial, there was no guarantee that the Defendant would not engage in similar behavior in the

future.

          For all of these reasons, this Court exercised its discretion in sentencing to aggravate the

Defendant's sentence by six months. The Court did not fully aggravate the Defendant's sentence

to the one year allotted by the sentencing guidelines, nor did it impose the Commonwealth's

requested sentence of ten (10) to twenty (20) years of incarceration, because the Defendant's

history of mental health issues and obvious familial support did provide some mitigation.

Accordingly, this Court did not abuse its discretion by sentencing the Defendant to a slightly

aggravated range of six to twelve years of incarceration.

V.        CONCLUSION

          For the above reasons, the trial court's judgment and sentence should be affirmed.


                                                         BY THE COURT:



                                                         LUCRETIA CLEMONS, J.
                                                         Dated: March 5, 2019




                                                    27
Commonwealth v. Ian Hyatt
CP-51-CR-0002152-2017

                                        PROOF OF SERVICE

I herebycertify that I am this day caused to be served the foregoing this person(s), and in the
manner indicated below:

Attorney for the Commonwealth:
                                        ATTN: Appeals Unit
                                        District Attorney's Office
                                        Three South Penn Square
                                        Philadelphia, PA 19107

Type of Service:       ( )   Personal   (X) First Class mail    ( ) CJC   mailbox   ( )   Email

Attorney for Defendant:
                                        Jonathan J. Sobel, Esquire
                                        1500 Walnut Street, Ste. 2000
                                        Philadelphia, PA 19102

Type of Service:       ( )   Personal   (X) First Class mail    ( ) CJC   mailbox   ( )   Email




DATED:                                                    (.2
                                        Arlyn K n, Esquire
                                        Law Clerk to Hon. Lucretia Clemons




                                                  28
