J-S03039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

DESEAN M. THOMPSON

                            Appellant              No. 1461 EDA 2015


             Appeal from the Judgment of Sentence April 17, 2015
                in the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0004424-2012


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                     FILED FEBRUARY 02, 2016

        Appellant Desean Thompson appeals from the judgment of sentence

entered in the Chester County Court of Common Pleas following his jury trial

convictions for rape by threat of forcible compulsion,1 involuntary deviate

sexual intercourse by threat of forcible compulsion,2 sexual assault,3

aggravated indecent assault without consent,4 aggravated assault by threat




____________________________________________


1
    18 Pa.C.S. § 3121(a)(2).
2
    18 Pa.C.S. § 3123(a)(2).
3
    18 Pa.C.S. § 3124.1.
4
    18 Pa.C.S. § 3125(a)(1).
J-S03039-16



of forcible compulsion,5 indecent assault by threat of forcible compulsion,6

and terroristic threats.7 After careful review, we affirm.

        The trial court set forth the relevant facts and procedural history of

this matter as follows:

              [Appellant] was arrested and charged with five counts of
        rape by threat of forcible compulsion, four counts of involuntary
        deviate sexual intercourse by threat of forcible compulsion, five
        counts of sexual assault, two counts of aggravated indecent
        assault, five counts of indecent assault and one count of
        terroristic threats.   These charges arose from [Appellant’s]
        assault on a 21[-]year[-]old victim in a public park in
        Coatesville, Chester County, Pennsylvania, on August 5, 2012.
        [Appellant] and the victim, who did not know one another prior
        to the night in question, met in a bar and then walked to Ash
        Park where [Appellant] repeatedly raped the victim and
        threatened her with the blade of a knife, over a period of several
        hours.

              Following a three day jury trial, on October 9, 2013,
        [Appellant] was found guilty of all counts charged.         On
        November 18, 2014, [Appellant] was sentenced to an aggregate
        sentence of 20½ to 45 years[’] imprisonment on five counts of
        rape and one count of terroristic threats.1 By Order dated
        October 3, 2014, [Appellant] was determined to be a sexually
        violent predator pursuant to 42 Pa.C.S.[] § 9799.24, subject to
        the lifetime registration requirements under 42 Pa.C.S.[] §§
        9799.10 et seq.
           1
               All remaining charges merged with rape.


____________________________________________


5
    18 Pa.C.S. § 3125(a)(3).
6
    18 Pa.C.S. § 3126(a)(3).
7
    18 Pa.C.S. § 2706(a)(1).




                                           -2-
J-S03039-16


             On December 1, 2014, [Appellant] filed a [p]ost[-]
      [s]entence [m]otion [p]ursuant to Rule 720 for [r]econsideration
      and [r]eduction of [s]entence and [n]ew [t]rial [p]ursuant to
      Rule 606 [c]hallenging the [s]ufficiency of the [e]vidence and
      Rule 607 [c]hallenging the [w]eight of the [e]vidence.        By
      [o]rder dated February 2, 2015, [Appellant’s] [m]otion for a
      [n]ew [t]rial was denied; however, [Appellant’s] [m]otion for
      [r]econsideration of [s]entence was granted. On April 17, 2015,
      [Appellant] was sentenced to an aggregate sentence of 18 to 45
      years[’] incarceration on five counts of rape and one count of
      terroristic threats. [Appellant] received credit for time served
      from November 19, 2012 to April 17, 2015 and was deemed
      ineligible for RRRI.

Trial Court Pa.R.A.P. 1925(a) Opinion, July 17, 2015 (“1925(a) Opinion”),

pp. 1-2.

      Appellant raises the following issues for our review:

      1. Whether [] the [t]rial [c]ourt erred by denying [Appellant’s]
      post-sentence motion for [a] new trial based upon [the] claim
      that the verdict was against the weight of the evidence[?]

      2. Whether [] the [t]rial [c]ourt erred by denying [Appellant’s]
      post-sentence motion challenging the sufficiency of the
      evidence[?]

      3.    Whether [] the [t]rial [c]ourt abused its discretion by
      imposing an aggregate sentence of 18 years to 45 years[’
      imprisonment] at a state correctional facility[?]

Appellant’s Brief, p. 4.

      First, Appellant alleges the trial court erred by denying his post-

sentence motion for a new trial based on the allegation that the guilty

verdicts were against the weight of the evidence. See Appellant’s Brief, pp.




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J-S03039-16



34-39.8       Effectively,    Appellant        claims   internal   inconsistencies   and

inconsistencies between the victim’s testimony and other witness testimony

and the physical evidence render the victim’s testimony incredible. See id.

We do not agree.

       The denial of a new trial based on a lower court’s determination that

the verdict was not against the weight of the evidence is one of the least

assailable reasons for granting or denying a new trial. Commonwealth v.

Clay, 64 A.3d 1049, 1055 (Pa.2013).                This Court reviews weight of the

evidence claims pursuant to the following standard:

       A motion for new trial on the grounds that the verdict is contrary
       to the weight of the evidence, concedes that there is sufficient
       evidence to sustain the verdict. Thus, the trial court is under no
       obligation to view the evidence in the light most favorable to the
       verdict winner. An allegation that the verdict is against the
       weight of the evidence is addressed to the discretion of the trial
       court. A new trial should not be granted because of a mere
       conflict in the testimony or because the judge on the same facts
       would have arrived at a different conclusion. A trial judge must
       do more than reassess the credibility of the witnesses and allege
       that he would not have assented to the verdict if he were a
       juror. Trial judges, in reviewing a claim that the verdict is
       against the weight of the evidence do not sit as the thirteenth
       juror. Rather, the role of the trial judge is to determine that
____________________________________________


8
  The pagination of Appellant’s brief begins on page 1 with his Statement of
Jurisdiction and proceeds through the end of the Summary of the Argument
on page 31. The brief then continues with the Statement of the Reasons to
Allow an Appeal to Challenge the Discretionary Aspects of a Sentence as
page 2 rather than page 32. This error continues throughout the remainder
of the brief and ends with a Proof of Service on page 25, which should be
page 55. For clarity, we treat Appellant’s brief herein as though he had not
made this clerical error, and had instead numbered his brief as pages 1
through 55.



                                           -4-
J-S03039-16


       notwithstanding all the facts, certain facts are so clearly of
       greater weight that to ignore them or to give them equal weight
       with all the facts is to deny justice.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa.2000) (internal

citations, quotations, and footnote omitted).

       Stated differently, a court may award a new trial because the verdict is

against the weight of the evidence only when the verdict is so contrary to

the evidence as to shock one’s sense of justice, 9 “such that right must be

given another opportunity to prevail.” Commonwealth v. Goodwine, 692

A.2d 233, 236 (Pa.Super.1997).            Moreover, appellate review of a weight

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

review of the underlying question of whether the verdict is against the

weight of the evidence.        Widmer, 744 A.2d at 753.      When reviewing the

trial court’s determination, this Court gives the gravest deference to the

findings of the court below. We review the court’s actions for an abuse of

discretion. Id.

____________________________________________


9
 This Court has explained the notion of “shocking to one’s sense of justice”
as follows:

       When the figure of Justice totters on her pedestal, or when the
       jury’s verdict, at the time of its rendition, causes the trial judge
       to lose his breath, temporarily, and causes him to almost fall
       from the bench, then it is truly shocking to the judicial
       conscience.

Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa.Super.2004)
(internal citations and quotations omitted).



                                           -5-
J-S03039-16



      In prosecutions for sexual offenses, “the uncorroborated testimony of

the   complaining    witness    is   sufficient   to   convict   a    defendant[.]”

Commonwealth v. Lyons, 833 A.2d 245, 258 (Pa.Super.2003); 18 Pa.C.S.

§ 3106 (“The testimony of a complainant need not be corroborated in

prosecutions under this chapter.”).       Further, the jury, as finder of fact,

passes judgment on the credibility of witnesses and is free to believe all,

some, or none of the testimony presented.              See Commonwealth v.

Thompson, 106 A.3d 742, 756 (Pa.Super.2014) (quoting Commonwealth

v. Caban, 60 A.3d 120, 132–133 (Pa.Super.2012)).

      Simply stated, the jury’s verdict in this matter illustrates that the jury

found the victim’s testimony regarding the assaults credible. To the extent

inconsistencies existed between the victim’s testimony and that of other

witnesses, such inconsistencies do not prevent conviction.           The trial court

summarized the victim’s testimony as follows:

      The victim testified that what started out as a friendly walk to
      the park, turned into [Appellant] sexually assaulting her. The
      victim testified that [Appellant] pushed her against a wall, began
      choking her and was pressing something into her stomach. The
      victim testified that it felt like a blade or a box cutter. The victim
      further testified that [Appellant] pulled her by [the] hair and
      forced her to engage in oral sex, anal sex and vaginal sex. The
      victim provided specific testimony regarding the sexual acts
      performed upon her by [Appellant] as well as the sexual acts
      [Appellant] forced her to perform on him.               At one point
      [Appellant] threatened to kill the victim if she made a scene or
      called for help.       The victim cried throughout the ordeal,
      continually told [Appellant] “No” and was afraid that if she did
      not do as [Appellant] told her, she would lose her life.




                                       -6-
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Trial Court Order, February 2, 2015,10 p. 1 n.1. From this testimony, and

based upon the jury’s right to resolve conflicts and/or inconsistencies in the

testimony presented, the trial court concluded that, “[b]ased upon the

record, we do not find the verdict so contrary to the evidence as to shock

one’s sense of justice and make an award of a new trial imperative.” Id.

       Our review of the trial transcript reveals the trial court did not abuse

its discretion in denying a new trial based on the weight of the evidence.

Accordingly, Appellant’s weight of the evidence claim fails.

       Next, Appellant claims the evidence was insufficient to support his

convictions. See Appellant’s Brief, pp. 39-41. Appellant claims the victim’s

testimony alone was insufficient to establish the elements of the crimes

charged. Id. He is incorrect.11
____________________________________________


10
   The trial court’s February 2, 2015 order denied Appellant’s post-sentence
motions for a new trial based upon weight and sufficiency of the evidence
claims. The trial court expressly incorporated this order into its 1925(a)
Opinion to explain its reasons for denying Appellant’s post-sentence motions.
See 1925(a) Opinion, p. 2.
11
    The Commonwealth argues Appellant has waived his sufficiency of the
evidence claims by filing an insufficient Pa.R.A.P. 1925(b) statement that
failed to identify the specific elements of the specific crimes the
Commonwealth allegedly failed to prove beyond a reasonable doubt. See
Commonwealth’s Brief, pp. 13-14.          Ordinarily, an appellant waives a
sufficiency of the evidence claim if he fails to specify the particular elements
of crimes an appellant claims the Commonwealth failed to prove.
Commonwealth v. Garland, 63 A.3d 339, 344 (Pa.Super.2013); see also
Commonwealth v. Garang, 9 A.3d 237, 244 (Pa.Super.2010). However,
in this matter, the substance of Appellant’s post-sentence motion for a new
trial and his argument at the hearing thereon made clear that Appellant was
challenging the consent element of the rape and assault convictions and the
(Footnote Continued Next Page)


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J-S03039-16



      When examining a challenge to the sufficiency of evidence, this Court’s

standard of review is as follows:

      The standard we apply in reviewing the sufficiency of the
      evidence is whether 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
      [trier] 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. Smith, 97 A.3d 782, 790 (Pa.Super.2014).

      In pertinent part, the Crimes Code defines rape by threat of forcible

compulsion as follows:

      (a) Offense defined.--A person commits a felony of the first
      degree when the person engages in sexual intercourse with a
      complainant:

                                            ...

                       _______________________
(Footnote Continued)

threat element of the terroristic threats convictions. Therefore, we will
overlook the deficiencies of Appellant’s 1925(b) statement and proceed to
determine the underlying sufficiency claim.



                                            -8-
J-S03039-16


           (2) By threat of forcible compulsion that would prevent
           resistance by a person of reasonable resolution.

18 Pa.C.S. § 3121(a)(2).      Likewise, the Crimes Code defines involuntary

deviate sexual intercourse by threat of forcible compulsion as follows:

      (a) Offense defined.--A person commits a felony of the first
      degree when the person engages in deviate sexual intercourse
      with a complainant:

                                       ...

           (2) by threat of forcible compulsion that would prevent
           resistance by a person of reasonable resolution[.]

18 Pa.C.S. § 3123(a)(2).        The Crimes Code further defines “forcible

compulsion” as:

      Compulsion by the use of physical, intellectual, moral, emotional
      or psychological force, either express or implied.

18 Pa.C.S. § 3101.

      The Crimes Code similarly defines aggravated indecent assault as

follows:

      (a) Offenses defined.--Except as provided in sections 3121
      (relating to rape), 3122.1 (relating to statutory sexual assault),
      3123 (relating to involuntary deviate sexual intercourse) and
      3124.1 (relating to sexual assault), a person who engages in
      penetration, however slight, of the genitals or anus of a
      complainant with a part of the person’s body for any purpose
      other than good faith medical, hygienic or law enforcement
      procedures commits aggravated indecent assault if:

           (1) the person does so without the complainant’s consent;
           [or]

                                 ...




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J-S03039-16


         (3) the person does so by threat of forcible compulsion
         that would prevent resistance by a person of reasonable
         resolution.

18 Pa.C.S. § 3125(a).

      Likewise, the Crimes Code defines indecent assault by threat of

forcible compulsion, in pertinent part, as:

      (a) Offense defined.--A person is guilty of indecent assault if
      the person has indecent contact with the complainant, causes
      the complainant to have indecent contact with the person or
      intentionally causes the complainant to come into contact with
      seminal fluid, urine or feces for the purpose of arousing sexual
      desire in the person or the complainant and:

                                      ...

         (3) the person does so by threat of forcible compulsion
         that would prevent resistance by a person of reasonable
         resolution[.]

18 Pa.C.S. § 3126(a)(3).

      Regarding sexual assault, the Crimes Code provides:

      Except as provided in section 3121 (relating to rape) or 3123
      (relating to involuntary deviate sexual intercourse), a person
      commits a felony of the second degree when that person
      engages in sexual intercourse or deviate sexual intercourse with
      a complainant without the complainant’s consent.

18 Pa.C.S. § 3124.1.

      Again, we note that the uncorroborated testimony of a victim can

suffice to convict an assailant of a sexual crime.   See Lyons, supra; 18

Pa.C.S. § 3106.

      Additionally, the Crimes Code defines terroristic threats, in pertinent

part, as follows:

                                     - 10 -
J-S03039-16


      (a) Offense defined.--A person commits the crime of terroristic
      threats if the person communicates, either directly or indirectly,
      a threat to:

         (1) commit any crime of violence with intent to terrorize
         another[.]

18 Pa.C.S. § 2706(a)(1).

      The trial court addressed Appellant’s sufficiency claims as follows:

      Based upon the evidence of record, the Commonwealth provided
      sufficient evidence to prove all crimes charged beyond a
      reasonable doubt. Although the victim was the only witness to
      provide evidence of the events as they unfolded, her testimony
      alone is insufficient to prove the crimes charged. The testimony
      of the complainant alone is sufficient proof upon which to find
      [Appellant] guilty of the sexual offenses charged. 18 Pa.C.S.[] §
      3106.     The testimony of the victim does not need to be
      corroborated by any other witnesses or evidence in order to
      sustain a conviction. 18 Pa.C.S.[] 3106.

Trial Court Order, February 2, 2015, p. 1 n.1.

      We     do    not   hesitate    to   agree    with    the    trial   court    that   the

Commonwealth presented sufficient evidence for the jury to find every

element of the crimes for which he was convicted beyond a reasonable

doubt.

      Lastly, Appellant claims that the trial court abused its discretion by

imposing an aggregate sentence of 18 to 45 years’ incarceration.                          See

Appellant’s Brief, pp. 42-53. We do not agree.

      Initially, we note that “[c]hallenges to the discretionary aspects of

sentencing    do     not   entitle    a   petitioner      to     review    as     of   right.”

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super.2011).                             Before



                                          - 11 -
J-S03039-16



this Court can address such a discretionary challenge, an appellant must

comply with the following requirements:

     An appellant challenging the discretionary aspects of his
     sentence must invoke this Court’s jurisdiction by satisfying a
     four-part test: (1) whether appellant has filed a timely notice of
     appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was
     properly preserved at sentencing or in a motion to reconsider
     and modify sentence, see Pa.R.Crim.P. [720]; (3) whether
     appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4)
     whether there is a substantial question that the sentence
     appealed from is not appropriate under the Sentencing Code.

Id. at 1064.

     Here, Appellant filed a timely notice of appeal, and preserved his

issues in a post-sentence motion.         Further, Appellant’s brief includes a

concise statement of the reasons relied upon for allowance of appeal

pursuant   to   Pa.R.A.P.   2119(f).      See   Appellant’s    Brief,   pp.   32-33.

Accordingly, we now determine whether Appellant has raised a substantial

question for review and, if so, proceed to a discussion of the merits of the

claim. See Pa.R.A.P. 2119(f); Commonwealth v. Tuladziecki, 522 A.2d

17 (Pa.1987).

     “A substantial question will be found where the defendant advances a

colorable argument that the sentence imposed is either inconsistent with a

specific provision of the [sentencing] code or is contrary to the fundamental

norms   which    underlie   the   sentencing    process.”     Commonwealth        v.

Christine, 78 A.3d 1, 10 (Pa.Super.2013) (internal citations omitted); see

also 42 Pa.C.S. § 9781(b). “We determine whether a particular case raises a


                                       - 12 -
J-S03039-16



substantial question on a case-by-case basis.”            Id.       A bald or generic

assertion that a sentence is excessive does not, by itself, raise a substantial

question justifying this Court’s review of the merits of the underlying claim.

Id.;   see   also   Commonwealth           v.    Harvard,    64      A.3d    690,   701

(Pa.Super.2013). Additionally, a court’s exercise of discretion in imposing a

sentence concurrently or consecutively does not ordinarily raise a substantial

question.     Commonwealth         v.     Mastromarino,         2    A.3d    581,   587

(Pa.Super.2010), appeal denied, 14 A.3d 825 (Pa.2011).                      Rather, the

imposition of consecutive rather than concurrent sentences will present a

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

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

crimes and the length of imprisonment.” Commonwealth v. Lamonda, 52

A.3d 365, 372 (Pa.Super.2012), appeal denied, 75 A.3d 1281 (Pa.2013).

This Court has stated that

       a defendant may raise a substantial question where he receives
       consecutive sentences within the guideline ranges if the case
       involves circumstances where the application of the guidelines
       would be clearly unreasonable, resulting in an excessive
       sentence; however, a bald claim of excessiveness due to the
       consecutive nature of a sentence will not raise a substantial
       question.

Commonwealth        v.    Dodge,   77     A.3d    1263,     1270     (Pa.Super.2013),

reargument denied (Nov. 21, 2013), appeal denied, 91 A.3d 161 (Pa.2014)

(emphasis in original).




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      Recently in Commonwealth v. Zirkle, the appellant argued his

aggregate minimum sentence for convictions on three counts of burglary,

three counts of criminal trespass, one count of criminal mischief, one count

of terroristic threats, and two counts of theft was so excessive as to raise a

substantial question for this Court’s review. 107 A.3d 127 (Pa.Super.2014).

This Court held:

      While a seventeen-year-and-one-month minimum sentence may
      seem harsh at first blush, given the charges involved, it is not so
      manifestly excessive as to raise a substantial question.

Zirkle, 107 A.3d at 134. The Court continued to explain that the fact

      that the crimes occurred in close proximity is not dispositive.
      Zirkle is not entitled to a “volume discount” because various
      crimes occurred in one continuous spree.

Id. (internal citation and some quotations omitted). Additionally, the Zirkle

Court noted “a claim that a court did not weigh [sentencing] factors as an

appellant wishes does not raise a substantial question.” Id. at 133 (citing

Commonwealth v. Bowersox, 690 A.2d 279, 281 (Pa.Super.1997)).

      Here, Appellant alleges that the trial court imposed an unreasonable

sentence. See Appellant’s Brief, pp. 42-53. Appellant does not argue that

the sentencing court relied upon any impermissible factors in sentencing,

relied solely on the severity of the crime committed, or sentenced beyond

statutory limits. Instead, he alleges that the aggregate of his consecutive

sentences was excessive and disproportionate to Appellant’s criminal

conduct, and that the trial court erred in imposing its sentence by failing to


                                    - 14 -
J-S03039-16



adequately account for Appellant’s personal history and rehabilitative needs,

and by placing too much emphasis on the impact on the victim and the

community.      Id.   Effectively, Appellant argues the length of his aggregate

sentence and the fact that the trial court did not weigh the sentencing

factors as he would have preferred make his sentence unreasonable.12

Neither of these claims raises a substantial question for review. See Zirkle,

supra.

       Even had Appellant stated a substantial question for review, we would

affirm on the merits.       We review discretionary aspects of sentence claims

under the following standard of review:

             If this Court grants appeal and reviews the sentence, the
       standard of review is well-settled: sentencing is vested in the
       discretion of the trial court, and will not be disturbed absent a
       manifest abuse of that discretion.        An abuse of discretion
       involves a sentence which was manifestly unreasonable, or
       which resulted from partiality, prejudice, bias or ill will. It is
       more than just an error in judgment.

Commonwealth v. Malovich, 903 A.2d 1247, 1252-53 (Pa.Super.2006)

(citations omitted).




____________________________________________


12
   We acknowledge that this Court has held that “an excessive sentence
claim—in conjunction with an assertion that the court failed to consider
mitigating factors—raises a substantial question.”     Commonwealth v.
Raven, 97 A.3d 1244, 1253 (Pa.Super.2014), appeal denied, 105 A.3d 736
(Pa.2014) (quoting Commonwealth v. Perry, 883 A.2d 599, 602
(Pa.Super.2005)). Appellant does not raise such a claim.



                                          - 15 -
J-S03039-16



      Our review of the sentencing transcript reveals that the lower court did

not abuse its discretion. See generally N.T. 4/17/2015. Instead, the trial

court imposed a sentence that was consistent with the protection of the

public, took into account the gravity of the offense as it related to the impact

on the life of the victim and on the community, and considered the

Appellant’s rehabilitative needs, as required by 42 Pa.C.S. § 9721(b). Id.

      In imposing sentence, the trial court considered Appellant’s age, level

of education and criminal background, the nature and circumstances of the

crimes, the sentencing guidelines, Appellant’s rehabilitative needs, the

arguments of counsel, the effect of the crime on the victim, and the effect of

the crime on the public. See N.T. 4/17/2015, pp. 2-18; N.T. 11/18/2014,

pp. 2-23; 1925(a) Opinion, pp. 4-6. The trial court explained the sentence

imposed as follows:

            [Appellant] was found guilty of five counts of rape and
      related offenses. The victim was a 21[-]year[-]old woman who
      had no relationship, sexual or otherwise, with [Appellant]. The
      crimes committed by [Appellant] demeaned, humiliated and
      shamed the victim. [Appellant] threatened the victim and put
      her in fear of losing her life. The crime was committed in a
      public park, at night, over a span of several hours, and
      [Appellant] threatened the victim at knife point.

            Although the victim did not suffer serious physical injury,
      [Appellant’s] criminal conduct will have lasting effects upon the
      victim. The victim, while present in the courtroom, declined to
      speak to the [c]ourt because she was nervous and emotionally
      traumatized by the sexual assault committed against her by
      [Appellant]. The victim’s trust in others has been shattered to
      the point where she does not interact with strangers and does
      not search out new acquaintances.



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J-S03039-16


           A presentence investigation report (PSI) revealed that
     [Appellant] started using marijuana and alcohol as a teenager
     and at the time of his arrest for the instant crimes, used these
     substances on a regular basis. As a juvenile, [Appellant] was
     adjudicated delinquent four times for drug offenses and was
     supervised by juvenile court in Philadelphia while on probation.
     As a juvenile, [Appellant] was found in violation of probation
     several times.     As an adult, [Appellant] was convicted of
     possession with intent to deliver a controlled substance on
     December 21, 2006. He was sentenced on April 11, 2007 to 20
     to 40 months[’] incarceration, plus a period of 4 years[’]
     probation consecutive. [Appellant] was found in violation of his
     probation on one occasion and faces a revocation proceeding in
     Philadelphia as a result of the instant conviction[s]. Despite four
     adjudications and one conviction for drug offenses, with
     probation, drug treatment and a state prison sentence,
     [Appellant] continues to use illegal drugs and was doing so at
     the time of the commission of the crimes in question.
     Rehabilitation efforts have been unsuccessful.

           [Appellant] has failed to take responsibility for his crimes.
     [Appellant’s] failure to take responsibility for his crimes
     diminishes the likelihood that rehabilitative efforts by the justice
     system will be successful.

           [Appellant] was last employed in August of 2012 as a
     warehouse worker. Prior to that time, [Appellant] worked part-
     time in the summer months for a waste disposal agency and was
     a maintenance worker.        [Appellant] left high school after
     completing the eleventh grade and while he has taken some GED
     classes through Career Link in Coatesville, PA after being
     released from state prison, he has not earned his GED.

           Neither [Appellant’s] mother nor his father was
     consistently involved with his life during his childhood.
     [Appellant’s] father was an alcoholic and essentially abandoned
     [Appellant] and his mother was addicted to crack cocaine.
     [Appellant] was raised by his maternal grandparents in
     Philadelphia. [Appellant] has maintained his primary residence
     at his grandparents’ home in Philadelphia for the past eighteen
     years.

           The reasons for the sentence are fully set forth by the
     [c]ourt in the transcript of the sentencing on April 17, 2015. The
     transcript sets forth our consideration of the factors set forth in


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     42 Pa.C.S.[] § 9721(b), including protection of the public,
     gravity of the offense, and rehabilitative needs of [Appellant].
     We hereby incorporate the transcript as the Opinion of the
     [c]ourt for the purposes of the appeal on this issue.

1925(a) Opinion, pp. 4-6.    Additionally, the court sentenced Appellant to

sentences within the standard guidelines range and within the statutory

maximums. See id. at 6; see also Commonwealth v. Moury, 992 A.2d

162, 171 (Pa.Super.2010) (“[W]here a sentence is within the standard range

of the guidelines, Pennsylvania law views the sentence as appropriate under

the Sentencing Code.”).     Accordingly, in addition to failing to raise a

substantial question for review, Appellant’s excessiveness claim fails on the

merits.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/2/2016




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