J-S30034-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    CHARLES MERRELL FRANK                        :
                                                 :
                       Appellant                 :   No. 1875 WDA 2019

         Appeal from the Judgment of Sentence Entered June 28, 2018
    In the Court of Common Pleas of Blair County Criminal Division at No(s):
                           CP-07-CR-0001312-2017


BEFORE:      MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                               FILED JULY 21, 2020

        Appellant Charles Merrell Frank appeals from the judgment of sentence

entered by the Blair County Court of Common Pleas after a jury convicted

Appellant of Involuntary Deviate Sexual Intercourse (IDSI), Criminal

Conspiracy, Aggravated Assault, Assault by Prisoner, Aggravated Indecent

Assault, Terroristic Threats, Unlawful Restraint, Simple Assault (two counts),

False    Imprisonment,       Recklessly        Endangering   Another   Person,   and

Harassment.1 Appellant challenges the weight of the evidence supporting two

of his convictions and claims his aggregate sentence is excessive. We affirm.

        Appellant was charged with the aforementioned offenses in connection

with the March 16, 2017 assault of C.S. (“the complainant”), a fellow inmate
____________________________________________


* Former Justice specially assigned to the Superior Court.
1  18 Pa.C.S.A. §§ 3123(a)(1), 903, 2702(a)(1), 2703(a), 3125(a)(2),
2706(a)(1), 2902(a)(1), 2701(a)(1) and (3), 2903(a), 2705, and 2709(a)(1).
respectively.
J-S30034-20



in the Blair County Prison. The prosecution alleged that Appellant, along with

inmates Zachary Moore, Curtis Ramsey, Dalaun Carroll, Allen Grager, and

Maurice Wakefield conspired to confiscate a bag of tobacco that the

complainant had concealed in his rectum. Appellant was charged with IDSI

and Aggravated Indecent Assault based on allegations that Appellant

penetrated the complainant’s anus with a toothbrush and his fingers.

      Following the assault, three of the inmates (Moore, Ramsey, Grager)

entered guilty pleas and received substantial prison sentences. Carroll agreed

to cooperate with the prosecution and was sentenced at a later date.

Appellant and Wakefield proceeded to a jury trial.

      On the day in question, the complainant, who had been previously

housed in the F-Block of the prison, was transferred to E-Block as a result of

an internal infraction, and placed in Cell #7 with F.F. and two other inmates.

At the time of his transfer in the morning, the complainant had stored tobacco

in his shoes and his rectum. Shortly after his transfer, the complainant traded

the tobacco he had stored in his shoes for a line of Subutex and commissary

items from inmates Carroll and Ramsey. When the inmates asked for more

tobacco, the complainant indicated that he had additional tobacco stored in

his rectum.   Notes of Testimony (N.T.), 4/2/18, at 98-102, 166-171; N.T,

4/3/18, at 15-18.

      One of the complainant’s cellmates, F.F., testified that several hours

later, in the evening hours of March 16, 2017, three inmates (Ramsey, Grager,

and Moore) entered his cell. F.F. was alone in the cell while Appellant was in

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prison yard. The three inmates threw F.F. to the ground, held a shank to his

throat, and threatened to slit his throat in an attempt to get the tobacco that

they believed the complainant had hid in the cell. Once F.F. convinced his

attackers there was no tobacco in the cell, Ramsey, Grager, and Moore left

Cell #7. N.T., 4/2/18, at 103-107.

      Later in the evening, before the cell lockdown at 10:00 p.m., the

complainant asserted that Appellant, Moore, Ramsey, Carroll, Grager, and

Wakefield lured him into Cell #1, where they cornered him and demanded

that he give them his tobacco. The men harassed the complainant and told

him that the tobacco retrieval could be done the “easy way” or the “hard way.”

Appellant admitted that he told the complainant that he “would prefer to do it

the hard way.” N.T., 4/2/18, at 173-182; N.T., 4/4/18, at 142.

      The complainant agreed to give the inmates his tobacco and sat on the

toilet to push the tobacco out himself. After the complainant was unable to

retrieve the tobacco, Appellant put on gloves to extricate the tobacco from the

complainant’s rectum using his fingers with pressure such that the

complainant felt substantial pain. The complainant also indicated that he also

felt a hard object being thrust into his rectal cavity. After Appellant was unable

to retrieve the tobacco from the complainant’s rectum, the inmates punched

and kicked the complainant multiple times in his head and ribs, causing his

ear to be “split, ripped almost in half.”    N.T., 4/2/18, 195.    Following the

assault, there was blood and feces all over the toilet, on the floor, in the




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complainant’s underwear, and on toothbrushes in the sink.     N.T., 4/2/18, at

185-196, 202.

      The assault was stopped as cell lockdown time arrived at 10:00 p.m.

Before returning to his cell, Wakefield threatened the complainant’s cellmates

to ensure that the complainant delivered the tobacco. F.F. testified that when

the complainant returned to the cell after the assault, he appeared to be

beaten badly such that “the top part of his ear was cut off – almost off.” N.T.

4/2/18, at 130. F.F. also recalled that the complainant had a strong odor of

feces. After the complainant was eventually able to extricate the tobacco on

his own, F.F. put the tobacco in a sock and threw it over to a cell across the

prison where the other inmates were housed.      N.T., 4/2/18, at 129-35.

      The complainant reluctantly revealed the assault to prison officials when

his cellmates notified them that the complainant needed medical treatment.

While Appellant admitted that he initially denied being assaulted in a

statement to prison officials, he explained he did so as he was afraid that he

would be harmed by the other inmates when he returned to his cell. Appellant

recalled that Grager and Wakefield told him to keep his mouth shut or things

would get worse.    The complainant eventually identified Appellant as the

individual who had penetrated his rectal cavity with his fingers and an object.

N.T. 4/2/18, at 41-48, 130-34, 207-211, 217.

      The Commonwealth also offered the testimony of Dalaun Carroll, who

admitted that he entered into an agreement with Appellant, Ramsey,

Wakefield, Grager, and Moore to corner the complainant in a cell to steal his

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tobacco. While Carroll admitted the complainant was beaten in the cell, he

denied seeing Appellant or the other inmates attempting to retrieve the

tobacco from the complainant’s person but indicated that the complainant was

simply trying to do it himself. N.T., 4/3/18, at 12-18, 40-53.

      C.M. and K.C., inmates who resided in Cell #1 at the time of the attack,

testified that after the group of inmates left their cell, there was blood and

feces everywhere and bloody toothbrushes in their sink. C.M. testified that

he witnessed the attack and observed Appellant moving his hand in and out

of the complainant’s anus. N.T., 4/3/18, at 97, 139-40.

      The Commonwealth also presented the testimony of Sexual Assault

Nurse Examiner, Kevin Clark, who examined the complainant the night

following the attack. Clark observed that complainant exhibited no “evidence

of acute bleeding, and no dried blood at the rectum or visible findings such as

bruising, swelling, superficial lacerations or anything thereof to the rectal

region.” N.T., 4/3/18, at 87. However, Clark admitted that he did not perform

an internal examination as the complainant did not show external trauma or

report any rectal discomfort. N.T. 4/3/18, at 87-89.

      Clark also testified that the mere fact that the complainant’s external

examination was normal did not mean he was not assaulted in the rectal area

as “the patient could still have presence of pain without any kind of visual

finding.”   N.T., 4/3/18, at 87.   Moreover, Clark indicated it was typically

uncommon to find injuries in an examination of a patient’s anus as the rectal

cavity heals pretty rapidly. N.T. 4/3/18, at 87-89.

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       Appellant testified on his own behalf, admitting guilt for some of the

crimes charged, but denying the allegations of sexual assault. While Appellant

admitted putting on a glove and snapping it, he claimed that he did that only

to “terrorize” the complainant and motivate him to get the tobacco on his own.

Appellant denied touching the complainant’s anus and claimed that the

complainant attempted to retrieve the tobacco himself with toothbrushes and

a shampoo bottle. Appellant admitted that the other inmates began to attack

the complainant when the complainant was unable to retrieve the tobacco.

N.T. 4/4/18, 143-49.

       Wakefield, Appellant’s co-defendant, testified similarly, indicating that

the other inmates kicked and punched the complainant after he could not

produce the tobacco, but denied that any of the inmates sought to retrieve

the tobacco from the complainant’s rectum. N.T., 4/5/18, at 54-59.

       At the conclusion of trial, the jury convicted Appellant on all charges.2

On June 28, 2018, the trial court sentenced Appellant to ten to twenty years’

incarceration for IDSI, ten to twenty years’ incarceration for aggravated

assault, five to ten years’ imprisonment for aggravated indecent assault, and

three to six years’ incarceration for assault by prisoner. 3 These sentences
____________________________________________


2 The jury convicted Appellant’s co-defendant, Wakefield of similar charges.
Wakefield was sentenced to an aggregate term of nine to eighteen years’
imprisonment. After Wakefield appealed, this Court affirmed the judgment of
sentence. See Commonwealth v. Wakefield, 1306 WDA 2018 (Pa.Super.
November 8, 2019) (unpublished memorandum).
3 The trial court noted that Appellant’s sentences for IDSI, conspiracy, and

aggravated assault were mandatory minimum sentences applicable under 18
Pa.C.S.A. § 9714 as “second strike” offenses.

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were set to run consecutively. Appellant also received concurrent sentences

of ten to twenty years’ imprisonment for conspiracy and two terms of one to

two years’ imprisonment for terroristic threats and unlawful restraint.       No

further penalties were imposed on the remaining charges. Thus, Appellant

initially received an aggregate sentence of twenty-eight to fifty-six years’ of

incarceration. Appellant did not file a post-sentence motion or an appeal.

      On January 14, 2019, Appellant filed a pro se PCRA petition seeking the

reinstatement of his post-sentence and appellate rights. The Commonwealth

did not object to this petition, and on July 24, 2019, the lower court reinstated

Appellant’s post-sentence rights nunc pro tunc.

      After Appellant filed a post-sentence motion, the trial court granted

Appellant’s relief in part based on his challenge to his mandatory minimum

sentences. On November 19, 2019, the trial court resentenced Appellant to

nine to eighteen years’ imprisonment for IDSI, seven to fourteen years’

imprisonment for conspiracy, and six to thirteen years’ for aggravated assault.

The other portions of the sentence order remained the same. Thus, Appellant

received an aggregate sentence of twenty-three to forty-seven years’

imprisonment.    Appellant filed timely post-sentence motions, which were

subsequently denied. This appeal followed.

      Appellant raises the following issues for our review:

      1.   Was the verdict of guilt on counts of Involuntary Deviate
           Sexual Intercourse and Aggravated Indecent Assault was [sic]
           against the weight of the evidence?



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      2.    Did the lower court abuse its discretion in sentencing
            Appellant to an excessive term of imprisonment of 23 to 47
            years, including consecutive sentences, which contravened
            the fundamental norms of sentencing set forth in 42 Pa.C.S.A.
            § 9721(b)?

Appellant’s Brief, at 5.

      Appellant first challenges the weight of the evidence supporting his

convictions for IDSI and Aggravated Indecent Assault. Our standard of review

is as follows:

      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:

           Appellate 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. Widmer], 560 Pa. [308,] 321–22, 744 A.2d
      [745,] 753 [(2000)] (emphasis added).

      This does not mean that the exercise of discretion by the trial court
      in granting or denying a motion for a new trial based on a
      challenge to the weight of the evidence is unfettered. In describing
      the limits of a trial court's discretion, we have explained:

           The term “discretion” imports the exercise of judgment,
           wisdom and skill so as to reach a dispassionate conclusion
           within the framework of the law, and is not exercised for the
           purpose of giving effect to the will of the judge. Discretion
           must be exercised on the foundation of reason, as opposed
           to prejudice, personal motivations, caprice or arbitrary
           actions. Discretion is abused where the course pursued

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          represents not merely an error of judgment, but where the
          judgment is manifestly unreasonable or where the law is not
          applied or where the record shows that the action is a result
          of partiality, prejudice, bias or ill-will.

       Widmer, 560 Pa. at 322, 744 A.2d at 753 (quoting Coker v. S.M.
       Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184–85
       (1993)).

Commonwealth v. Clay, 619 Pa. 423, 64 A.3d 1049, 1055 (2013) (some

internal citations omitted). In order for an appellant to be entitled to a new

trial on the grounds that the verdict is against the weight of the evidence, “the

evidence must be so tenuous, vague and uncertain that the verdict shocks the

conscience of the court.” Commonwealth v. Akhmedov, 216 A.3d 307, 326

(Pa.Super. 2019) (en banc).

       Appellant challenges his convictions for IDSI and Aggravated Indecent

Assault, both of which require proof that Appellant penetrated the victim. To

be convicted of IDSI under Section 3123(a)(1) of the Crimes Code, the

Commonwealth must prove that the accused “engage[d] in deviate sexual

intercourse with a complainant … by forcible compulsion.”        18 Pa.C.S.A. §

3123(a)(1). The Crimes Code defines “[d]eviate sexual intercourse” as:

       [s]exual intercourse per os or per anus between human beings
       and any form of sexual intercourse with an animal. The term also
       includes penetration, however slight, of the genitals or anus of
       another person with a foreign object for any purpose other than
       good faith medical, hygienic or law enforcement procedures.

18 Pa.C.S.A. § 3101.4
____________________________________________


4Our Supreme Court has held that “[d]igital penetration does not fall within
any of the conduct described by our legislature as sexual intercourse or



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       To be convicted of Aggravated Indecent Assault under Section

3125(a)(2) of the Crimes Code, the Commonwealth must show that the

accused “engage[d] 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” and “the person does so by

forcible compulsion.” 18 Pa.C.S.A. § 3125(a)(2).

       Appellant    concedes     that    the   Commonwealth     could   charge   him

separately with IDSI for the allegation of penetration of the complainant’s

anus with a foreign object (toothbrush) and Aggravated Indecent Assault for

the allegation of digital penetration.         However, Appellant limits his weight

challenge to suggest that the Commonwealth did not meet its burden of

proving the element of penetration beyond a reasonable doubt.

       Appellant specifically argues that while the complainant claimed that

Appellant penetrated his anus with his fingers and toothbrushes, the

complainant admitted that he did not see the individual who was behind him

or the object that was used. In addition, Appellant notes that the complainant

initially denied being assaulted, did not immediately request medical

assistance, did not report to the nurse that he had been assaulted with a

foreign object, and did not sustain any injury to his anus as reported in a

subsequent examination by a sexual assault nurse examiner.


____________________________________________


deviate sexual intercourse.” Commonwealth v. Kelley, 569 Pa. 179, 187,
801 A.2d 551, 555 (2002).


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      In denying Appellant’s challenge to the weight of the evidence, the trial

court noted that the prosecution offered ample, credible testimony to

corroborate the complainant’s account of the assault. C.M., an inmate who

resided in the cell where the assault took place, testified that he witnessed

the attack and observed Appellant’s hand going in and out of the complainant’s

rectum. Several inmates testified to the condition of that cell after the assault,

reporting that there was blood and feces everywhere, including on a pair of

gloves in the toilet and toothbrushes in the sink.        Appellant admitted to

wearing gloves during the assault, but claimed he did it only to scare the

complainant.

      While the complainant conceded that he denied being assaulted in an

initial statement to prison officials, he explained he did so as he was afraid

that he would be harmed by the other inmates when he returned to his cell.

The complainant recalled that several of the inmates that participated in the

assault told him to keep his mouth shut or things would get worse.

      We also reject Appellant’s claim that the complainant’s medical

examination proved that he was not assaulted. While Sexual Assault Nurse

Examiner Clark examined the complainant nearly one day after the assault

occurred and noted that the complainant exhibited no external bleeding or

external trauma, Clark did not perform an internal examination. Moreover,

Clark emphasized that the absence of injury to an individual’s anus does not

invalidate the individual’s claim that they had been assaulted.




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      As a result, in reviewing all the evidence presented at trial, we find that

the trial court did not abuse its discretion in finding that the jury’s verdicts

were supported by the weight of the evidence.

      Appellant also argues that the trial court abused its discretion in running

his sentences consecutively, resulting in an excessive aggregate sentence.

The following principles apply to our consideration of Appellant's challenge to

the discretionary aspects of his sentence:

      Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to an appeal as of right. Prior to reaching the
      merits of a discretionary sentencing issue[, w]e conduct a four-
      part analysis to determine: (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, 42
      Pa.C.S.A. § 9781(b).

      When appealing the discretionary aspects of a sentence, an
      appellant must invoke the appellate court's jurisdiction by
      including in his brief a separate concise statement demonstrating
      that there is a substantial question as to the appropriateness of
      the sentence under the Sentencing Code. The requirement that an
      appellant separately set forth the reasons relied upon for
      allowance of appeal furthers the purpose evident in the
      Sentencing Code as a whole of limiting any challenges to the trial
      court's evaluation of the multitude of factors impinging on the
      sentencing decision to exceptional cases.

Commonwealth v. Manivannan, 186 A.3d 472, 489 (Pa.Super. 2018)

(quotation marks, some citations, and emphasis omitted).

      In this case, Appellant has: (1) timely filed a notice of appeal, (2)

preserved the instant issue in a post-sentence motion, and (3) included a Rule


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2119(f) statement in his brief. We turn to the next requirement: whether

Appellant raised a substantial question meriting our discretionary review. This

Court has recognized that:

      [t]he determination of what constitutes a substantial question
      must be evaluated on a case-by-case basis. 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.

Id. (quotation marks and some citations omitted).

      Appellant challenges the trial court’s decision to impose consecutive

sentences that amounted to an aggregate sentence of twenty-three to forty-

seven years’ imprisonment. This Court has specifically held that:

      [a] sentencing court's decision to impose consecutive as opposed
      to concurrent sentences generally does not present a substantial
      question. See Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa.
      Super. 2014) (noting that the decision to impose consecutive or
      concurrent sentences lies within the discretion of the trial court).
      However, “the imposition of consecutive, rather than concurrent,
      sentences may raise a substantial question... where the aggregate
      sentence is unduly harsh, considering the nature of the crimes and
      length of imprisonment.” Commonwealth v. Moury, 992 A.2d
      162, 171–172 (Pa. Super. 2010). Accord Commonwealth v.
      Mastromarino, 2 A.3d 581, 587 (Pa.Super. 2010) (“[A
      substantial question is presented when] the decision to sentence
      consecutively raises the aggregate sentence to, what appears
      upon its face to be, an excessive level in light of the criminal
      conduct at issue”).

Commonwealth v. Sarvey, 199 A.3d 436, 455–56 (Pa.Super. 2018).

      [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;


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J-S30034-20


      however, a bald claim of excessiveness due to the consecutive
      nature of a sentence will not raise a substantial question.

Commonweatlh v. Diehl, 140 A.3d 34, 45 (Pa.Super. 2016) (citation

omitted).

      Appellant asserts that the trial court abused its discretion in ordering his

standard range sentences to run consecutively as he argues that the grounds

for his charges involves conduct that arose in one criminal episode. While

Appellant concedes that his IDSI and Aggravated Indecent Assault convictions

were based on separate actions involving foreign object and digital penetration

of the complainant’s anus, he asserts that “this distinction does not justify

separate consecutive sentences for both offenses.” Appellant’s Brief, at 19.

Appellant similarly concedes that his convictions for Aggravated Assault and

Assault by Prisoner do not merge, but claims there is no justification for

running these sentences consecutively.

      Even assuming that Appellant has raised a substantial question for our

review, it is well-established that “defendants convicted of multiple offenses

are not entitled to a ‘volume discount’ on their aggregate sentence.”

Commonwealth v. Foust, 180 A.3d 416, 434 (Pa.Super. 2018). This Court

has held that “[t]he mere fact that the crimes arose out of the same incident

does not mean that Appellant is entitled to receive concurrent sentences.”

Commonwealth v. Bonner, 135 A.3d 592, 605 (Pa.Super. 2016).

      While an inmate in the Blair County Prison, Appellant committed distinct

crimes against a fellow inmate when he chose to forcibly penetrate the

complainant’s anus with his fingers and a toothbrush.        Appellant was also

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criminally liable for the violent attack against the complainant in which

Appellant’s co-conspirators repeatedly punched and kicked the complainant’s

head with such force that they split his ear. We reject Appellant’s suggestion

that he is entitled to a volume discount for these crimes.

      Accordingly, we conclude that the trial court properly exercised its

discretion in imposing consecutive sentences.

      For the foregoing reasons, we affirm the judgment of sentence.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2020




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