J-S70025-18


                                   2019 PA Super 56

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RASHAWN ROANE                              :
                                               :
                       Appellant               :   No. 3157 EDA 2017

          Appeal from the Judgment of Sentence Entered April 21, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0005123-2013


BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

OPINION BY McLAUGHLIN, J.:                          FILED FEBRUARY 22, 2019

        Rashawn Roane appeals from the judgment of sentence entered on April

21, 2017, after a jury convicted him of rape of a child, unlawful restraint of a

minor, and indecent assault.1 Roane challenges the discretionary aspects of

his sentence and the weight of the evidence. He also claims that the trial court

failed to merge the indecent assault conviction with the rape of a child

conviction. We affirm.

        Roane was charged for committing sexual acts against his cousin, A.R.

At trial, the Commonwealth presented the following evidence. A.R. testified

that the sexual assaults began when she was about seven or eight years old;

occurred in the summer time; and continued until she was nine years old,




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1   18 Pa.C.S.A. §§ 3121(c), 2902(b)(1), and 3126(a)(7), respectively.
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when she finally reported the assaults to her mother. N.T., Trial, 6/24/16, at

48, 57.

      A.R. testified to multiple instances of Roane sexual assaulting her. She

testified in the summer when she was eight years old, she woke up with her

pants down and Roane laying on top of her with his penis in her vagina. Roane

jumped off of A.R. when she awoke. Id. at 40-45, 48. On another occasion,

after A.R. got out of the shower Roane began to tickle A.R. She was undressed

at the time. A.R. told him to stop but he ignored her demand and pulled his

pants down and again inserted his penis into her vagina. Id. at 45-48. The

next incident occurred when A.R. was sleeping and again awoke with her pants

down and Roane on top of her with his penis in her vagina. Id. at 49-50. A.R.

also testified that one time while she and Roane were sitting on the couch, he

touched her genital area. Id. at 50-51. She also testified that the times when

Roane would penetrate her vagina with his penis “it hurt, it would sting, it

would be watery.” Id. at 53. Additionally, A.R. testified that during these

incidents Roane would force her hands to her side and sometimes punch her

on her back. Id. at 53-54. The abuse stopped once the victim informed her

mother. A.R. testified that she delayed telling her mother because she “didn’t

want her to feel bad or try to hurt him.” Id. at 56.

      The jury found Roane guilty of the above-referenced crimes. Following

the verdicts, the trial court sentenced Roane to ten to 20 years for rape of a

child, a consecutive term of ten years reporting probation for unlawful

restraint of a minor, and a concurrent term of seven years reporting probation

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for indecent assault. Roane filed a post-sentence motion which was denied by

operation of law on August 30, 2017. This timely appeal followed.

      Roane raises the following issues:

      I.     Was not the verdict against the weight of the evidence
             where the testimony of each witness was so inherently
             unreliable such that the jury’s verdict of guilt was manifestly
             unreasonable and a new trial should be granted in the
             interest of justice?

      II.    Did not the trial court impose an illegal sentence by failing
             to merge indecent assault of a complainant less than 13
             years of age, 18 Pa.C.S. § 3126(a)(7), with rape of a child,
             18 Pa.C.S. § 3121(c)?

      III.   Did not the trial court err as a matter of law, abuse its
             discretion and violate general sentencing principles by
             imposing a manifestly excessive and unreasonable sentence
             of 10 to 20 years of incarceration plus 10 years of probation,
             where [Roane] was 19 years old at the time of the offense
             and the sentence was in excess of what was necessary to
             address the gravity of the offense, the protection of the
             community and [Roane’s] rehabilitative needs?

Roane’s Br. at 4.

WEIGHT OF EVIDENCE

      Roane maintains that the verdicts were against the weight of the

evidence because “[n]one of the testifying witnesses could recall any details

of times, dates, or what happened during any of the incidents of assault,

except for the most generic of descriptions.” Id. at 16. He argues that since

the testimony of the Commonwealth’s witnesses was inconsistent, “[t]he jury

verdict could only have been based on speculation and conjecture.” Id. at 19.




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      When reviewing a challenge to the weight of the evidence, we review

“the trial court’s exercise of discretion.” Commonwealth v. Johnson, 192

A.3d 1149, 1152-53 (Pa.Super. 2018) (citing Commonwealth v. Hicks, 151

A.2d 216, 223 (Pa.Super. 2016)). A reversal of a verdict is not necessary

“unless it is so contrary to the evidence as to shock one’s sense of justice.”

Id. at 1153. “The weight of the evidence is exclusively for the finder of fact,

who is free to believe all, none or some of the evidence and to determine the

credibility of the witnesses.” Commonwealth v. Cramer, 195 A.3d 594, 600

(Pa.Super. 2018) (citation omitted). The fact-finder also has the responsibility

of “resolving contradictory testimony and questions of credibility.” Id.

(citation omitted). We give great deference to the trial court’s decision

regarding a weight of the evidence claim because it “had the opportunity to

hear and see the evidence presented.” Id. (citation omitted).

      Here, the victim did not testify to “generic descriptions” of the sexual

assault that she endured at the hands of Roane. Rather, she testified in detail

as to the multiple occasions that Roane either forced his penis in her vagina

or tried to touch her vagina. She described that Roane’s penetration of her

hurt and stung. While A.R. was not able to give specific dates or times of her

assaults, she testified that the abuse occurred when she was between the

ages of seven and eight and recalled that the abuse took place in the summer

time. Additionally, when a case involves an allegation of sexual abuse, “the

Commonwealth must be afforded broad latitude when attempting to fix the

date of offenses which involve a continuous course of criminal conduct.”

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Commonwealth v. Brooks, 7 A.3d 852, 858 (Pa.Super. 2010). Furthermore,

while the testimony of the Commonwealth’s witnesses may have been

inconsistent, the jury as fact-finder, viewing the witnesses and their

demeanor, resolved any conflicts and found relevant portions of their

testimony credible, which it was free to do. Cramer, 195 A.3d at 600. Roane’s

challenge to the weight of the evidence fails.

MERGER OF OFFENSES

        Next, Roane claims that because “there was only one conviction for one

count of each [crime], and the acts underlying the indecent assault conviction

are not predicated on any acts separate from the acts of forcible intercourse,”

the conviction for the rape of a child should have merged with the conviction

for indecent assault for sentencing purposes. Roane’s Br. at 25.

        Merger of offenses is appropriate where: “(1) the crimes arise from a

single criminal act; and (2) all of the statutory elements of one of the offenses

are included in the statutory elements of the other offense.” Commonwealth

v. Crissman, 195 A.3d 588, 591 (Pa.Super. 2018); see also 42 Pa.C.S.A. §

9765.2 “[W]hen an indecent assault conviction is predicated upon an act

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2   Section 9765 provides:

        No crimes shall merge for sentencing purposes unless the crimes
        arise from a single criminal act and all of the statutory elements
        of one offense are included in the statutory elements of the other
        offense. Where crimes merge for sentencing purposes, the court
        may sentence the defendant only on the higher graded offense.

42 Pa.C.S.A. § 9765.

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separate from the act of forcible intercourse, the indecent assault conviction

does not merge with a conviction for rape.” Commonwealth v. Richter, 676

A.2d 1232, 1236 (Pa.Super. 1996). This rule applies regardless of “whether

the act which constitutes indecent assault is committed immediately prior to,

or concurrently with the rape.” Id.

       Here, Roane’s conviction for indecent assault was for his actions of

touching A.R.’s genital area when they were on the couch together. However,

the rape conviction was based on a separate incident in which he inserted his

penis in A.R.’s vagina while she was sleeping. Therefore, both convictions were

predicated on separate acts. The trial court did not abuse its discretion in

concluding that the convictions did not merge.

DISCRETIONARY ASPECTS OF SENTENCE

       Roane also challenges the discretionary aspects of his sentence. Before

addressing the merits of his claims, we must determine whether: (1) the

appeal is timely; (2) the issue was preserved; (3) the brief includes a 2119(f)

statement; and (4) a substantial question is raised.3 See Commonwealth v.

Edwards, 194 A.3d 625, 636 (Pa.Super. 2018).

       Here, Roane’s appeal is timely, he preserved his issues in his post-

sentence motion, and he has complied with Rule 2119(f). First, he maintains
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3 “An appellant who challenges the discretionary aspects of a sentence in a
criminal matter shall set forth in a separate section of the brief a concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of a sentence. The statement shall immediately
precede the argument on the merits with respect to the discretionary aspects
of the sentence.” Pa.R.A.P. 2119(f).

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that the trial court failed to consider the factors in 42 Pa.C.S.A. § 9721(b).

Second, he claims that the trial court imposed a manifestly excessive and

unreasonable sentence. Both these claims raise substantial questions. See

Commonwealth v. Derry, 150 A.3d 987, 995 (Pa.Super. 2016) (finding that

claims that court failed to consider factors in Section 9721(b) and imposition

of a manifestly excessive sentence raises a substantial question). Therefore,

we will now address the merits of his claims.

      Section 9721(b) lists factors that a trial court must consider when

sentencing a defendant, including “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.A. §

9721(b). Roane maintains that the trial court considered “little or none” of the

above. However, the record belies Roane’s argument.

      Prior to sentencing Roane, the trial court stated the following:

      Looking at my notes, I recall there were repeated incidents in
      family homes. There was a strange situation with the grandmother
      seeing something go on and not saying anything. So, certainly,
      there was a lack of protection on many levels of the complainant,
      the repeated abuse, certainly, by the defendant. . . I appreciate
      what the defense is saying in terms of mitigations, primarily
      around the mental health issues, which we’ve heard a lot about
      today. And, certainly, that can’t be denied, that the defendant had
      profound mental health challenges, which have been well
      documented over a long period of time. . . But that, certainly,
      doesn’t excuse what we have here, the horror of what happened
      to this young girl at such a young age, and now she’s trying to
      move on with her life.




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N.T., Sentencing, April 21, 2017, at 37-38. The trial court considered the

above as well as the Pre-Sentence Investigation (PSI) report and “the severity

of these charges, the reprehensible facts, and the repugnant acts that took

place concerning the young complainant.” Id. at 26, 39. Thus, the record

supports that the trial court considered the relevant factors of Section 9721(b)

and that Roane’s sentence was not manifestly excessive or unreasonable.

Therefore, we conclude that this claim is meritless and no relief is due.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/19




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