J-S76006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellee

                     v.

BRIAN WADE,

                          Appellant                  No. 1841 WDA 2017


        Appeal from the Judgment of Sentence Entered June 5, 2017
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0005051-2016


BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:                     FILED MARCH 05, 2019

      Appellant, Brian Wade, appeals from the judgment of sentence of an

aggregate term of 25-50 years’ incarceration, imposed after a jury found him

guilty of rape of a child and related offenses. Appellant challenges the weight

of the evidence supporting his conviction and the discretionary aspects of his

sentence. After careful review, we affirm.

      The trial court summarized the facts adduced at trial as follows:

      [T]he evidence presented at trial established that in the summer
      of 2015, [Appellant] returned to live with his parents at their home
      on Sidney Street in the South Side of Pittsburgh after many years
      of living apart from them.9 He began to spend time with his half[-
      ]sister, [Mother], who lived nearby on Mary Street in the South
      Side and her family, although [Mother]’s then-10 year old
      daughter, [Victim], was not permitted to be alone with
      [Appellant].     Nevertheless, [Appellant] began to pay special
      attention to [Victim], calling her “sweetheart” and “baby” and
      hugging and touching her in a sexual manner even when others
      were around.
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            In the late evening hours of July 12, 2015, [Victim] had
     returned from dinner at Red Lobster and a trip to Wal-Mart with
     [Mother], [Mother]’s boyfriend, Eugene[,] and her brother[,] and
     was playing on the computer in the family room while the rest of
     the family was upstairs. She heard a tapping on the window and
     saw [Appellant] outside. [Victim] and [Appellant] sat on the front
     porch and talked, then [Appellant] suggested that they go
     swimming in [Victim]’s above-ground swimming pool. [Appellant]
     swam in his boxer shorts and [Victim swam] in her clothes. After
     their swim, at approximately 2:00 a.m., [Appellant] took [Victim]
     to her grandmother’s house by walking her down Carson Street
     and taking a brief detour into Cupka’s bar to greet a cousin who
     worked there as a bartender.        When they arrived at her
     grandmother’s house, the two sat on the front porch and talked.
     [Appellant] asked [Victim] if she knew how to [F]rench kiss and
     when she replied “yes[,]” he told her to prove it. The two kissed
     several times and then went into the house and had sexual
     intercourse on the couch in the family room.
        9 [Appellant] had been incarcerated for a term of 15 to 30
        years for … prior convictions of [r]ape, [k]idnapping,
        [i]nvoluntary [d]eviate [s]exual [i]ntercourse, [s]exual
        [a]ssault, [a]ggravated indecent [a]ssault, [i]ndecent
        [a]ssault and [t]erroristic [t]hreats, though the jury was not
        told of the prior convictions.

        Before leaving the house the night before, [Victim] had left her
     mother a note, which her mother found at approximately 6 a.m.
     [Mother] went to the house where she woke [Victim] by
     screaming, hitting her and pulling her hair. She then forbade
     [Appellant] to come to her house or spend time with [Victim].
     Nevertheless, [Victim] continued to visit her grandmother’s house
     (and would frequently stay the night) throughout the summer and
     into the fall and winter and would see [Appellant] there. When
     she spent the night, she and [Appellant] would have sexual
     intercourse in the family room after everyone else went to bed,
     which occurred a total of 15 times. [Victim] and [Appellant] would
     exchange text messages, which were seen by some of her friends,
     though she immediately deleted them to prevent her mother from
     seeing.

        The episodes of intercourse continued until March, 2016, when
     [Victim] told several school classmates that she was having sex
     with her uncle. One classmate told her mother, who then told the
     teacher and the school eventually contacted [Victim]’s father, who

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       did not live with [her]. After being confronted by her mother,
       [Victim] admitted [to] having sexual intercourse with her uncle,
       [Appellant].

Trial Court Opinion (TCO), 4/26/18, at 2-3.

       Police subsequently arrested Appellant, and the Commonwealth

ultimately charged him with rape of a child, 18 Pa.C.S. § 3121(c); unlawful

contact with a minor (UCWM), 18 Pa.C.S. § 6318(a)(1); sexual assault, 18

Pa.C.S. § 3124.1; interference with the custody of children, 18 Pa.C.S. §

2904(a); indecent assault, 18 Pa.C.S. § 3126(a)(7); corruption of minors, 18

Pa.C.S. § 6301(a)(1)(ii); and indecent exposure, 18 Pa.C.S. § 3127(a). 1 A

trial was held on March 20-27, 2017, after which the jury convicted Appellant

on all counts. On June 5, 2017, the trial court sentenced Appellant to 20-40

years’ incarceration for rape of a child, and to a consecutive term of 5-10

years’ incarceration for UCWM.          No further penalties were assessed at the

remaining counts.       The trial court denied Appellant’s timely post-sentence

motion on June 22, 2017. Appellant then filed a timely notice of appeal, and

a timely, court-ordered Pa.R.A.P. 1925(b) statement. The trial court issued

its Rule 1925(a) opinion on April 26, 2018.

       Appellant now presents the following questions for our review:

        I.    Did the lower court err in denying the motion for a new trial
              because the verdict was contrary to the weight of the
              evidence provided? Specifically, when the trial testimony
              from the alleged victim in a case is vague, uncorroborated,
              riddled with contradictions, and was proven false with
              respect to [V]ictim’s alleged dates of sexual intercourse,
____________________________________________


1 Other charges initially filed in this case were withdrawn or nolle prossed prior
to the jury’s deliberations.

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               should [V]ictim’s testimony have been wholly rejected by
               the jury?

      II.      Did the [trial] court err in imposing a manifestly excessive
               sentence, which is an abuse of the court’s discretion, in that
               … Appellant was ordered to serve 25 to 50 years of
               incarceration, meaning he will be under court supervision
               until … Appellant is 88 years old, and there are inadequate
               reasons on the record for a de facto life sentence?
               Moreover, did the sentencing court err in failing to consider
               all factors under Section 9721(b) of the Sentencing Code,
               as it must, including not just the severity of the crime and
               the impact on the victim, but also the character of the
               defendant and his need for rehabilitation?

Appellant’s Brief at 10.

      Appellant first presents a weight-of-the-evidence claim. We apply the

following standard of review to a challenge that a verdict is against the weight

of the evidence:

            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.

      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:


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         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
         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.

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

omitted).

      Instantly, Appellant points to many inconsistencies in Victim’s testimony

to support his claim that the trial court abused its discretion by failing to find

that the verdict was against the weight of the evidence. Appellant first argues

that it was “implausible and contrary to common experience” that Victim,

despite being a virgin at the time, neither bled nor felt pain during the first

time she had sex with Appellant, despite her additional claim that the act

“lasted for fifteen minutes.” Appellant’s Brief at 40. However, this assertion

was directly contradicted by the testimony of Dr. Jennifer Clarke, a child abuse

pediatrician at Children’s Hospital. Dr. Clarke, when asked by the prosecutor

“whether or not a woman necessarily bleeds when she is penetrated for the

first time or whether or not she experiences any pain[,]” responded, “I think

people can have variety of experiences that can range from no to little pain or

no to little bleeding to … a report of excruciating pain to tons of bleeding. It

just depends.”   N.T. Trial, 3/20/17-3/27/17, 147-48.       Thus, it is certainly




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plausible that Victim did not experience bleeding or pain when Appellant first

penetrated her, regardless of what Appellant considers ‘common experience.’

      The next discrepancy raised by Appellant is “whether Victim and

[Appellant] discussed French kissing prior to their first sexual experience … at

[Victim]’s house by the pool or on the porch at her grandmother’s house.”

Appellant’s Brief at 41. Victim testified at trial that she had a conversation

with Appellant about French kissing on her grandmother’s porch. N.T. Trial at

65. Later, she was challenged by defense counsel during cross-examination

regarding whether she had initially told police that the conversation had

instead occurred near the pool at her own home.           Id. at 104-05.     Victim

testified that she did not recall telling that to police, and that she was surprised

that it was in the police report. Id. at 105. This discrepancy, regarding the

precise location of a brief conversation as recalled by the 12-year-old victim

nearly two years after it had occurred, appears trivial on its face. Notably,

Victim recalled virtually every other aspect of that conversation, which, in any

event, did not specifically relate to any of the charged offenses.

      Appellant next complains that Victim’s testimony was inconsistent with

regard to the number of times she had sex with Appellant. At trial, she stated

that she had sex with Appellant 15 times, whereas she had suggested it was

13 times at the preliminary hearing. Appellant’s Brief at 41. Furthermore,

during the forensic interview conducted at Children’s Hospital, Victim claimed

she had sex with Appellant twice on the first night, but she only “discussed

one sexual encounter” at trial. Id.

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      Again, this Court finds the discrepancies raised by Appellant to be minor

in the full context of this case. Appellant was not charged with having sex

with Victim on 15 or even 13 occasions. Instead, the charges were focused

only on the sexual interactions that occurred on July 12, 2015. In any event,

these discrepancies were brought to the jury’s attention through defense

counsel’s cross-examination of Victim, N.T. Trial at 92-121, and then

thoroughly discussed by defense counsel during his closing argument, id. at

278-95.       Thus, the jury was fully aware of the inconsistencies in Victim’s

testimony; nevertheless, the jury chose to believe Victim.

      Appellant also contends that the testimony of Brandie Recker, the cousin

who worked at Cupka’s Bar, contradicted Victim’s statement that Appellant

and Victim visited Recker on July 12, 2015. At trial, Recker testified that she

never saw Appellant and Victim that evening. However, Recker’s statement

at trial directly contradicted a statement she gave to police. See N.T. Trial at

130. When confronted with this fact, Recker stated that she did not recall

what she had told the officer merely one week prior. Id. Thus, it is obvious

that Recker’s credibility was in no better state than Victim’s and, therefore,

was yet another matter for the jury to resolve.

      Appellant raises several other minor discrepancies as well, however, we

disagree that the jury’s guilty verdict should have shocked the conscience of

the   trial   court   given   these   discrepancies,   considered   individually   or

collectively. After a thorough review of the record, we ascertain no abuse of




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discretion in the trial court’s decision to deny Appellant’s post-sentence,

weight-of-the-evidence claim.

      Next, Appellant asserts that the trial court abused its discretion when

crafting his sentence.

             Challenges to the discretionary aspects of sentencing do not
      entitle an appellant to review as of right. Commonwealth v.
      Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
      challenging the discretionary aspects of his sentence must invoke
      this Court’s jurisdiction by satisfying a four-part test:

         [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.[] § 9781(b).

      Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
      appeal denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal
      citations omitted). Objections to the discretionary aspects of a
      sentence are generally waived if they are not raised at the
      sentencing hearing or in a motion to modify the sentence imposed.
      Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003),
      appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).

            The determination of what constitutes a substantial question
      must be evaluated on a case-by-case basis. Commonwealth v.
      Paul, 925 A.2d 825, 828 (Pa. Super. 2007). 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.”
      Sierra, supra at 912-13.

           As to what constitutes a substantial question, this Court
      does not accept bald assertions of sentencing errors.
      Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.


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       2006). An appellant must articulate the reasons the sentencing
       court’s actions violated the sentencing code. Id.

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).

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

discretionary-aspects-of-sentencing claim in a timely-filed post-sentence

motion, and supplied this Court with a Rule 2119(f) statement in his brief.

Thus, we now consider whether Appellant presents a substantial question for

our review.

       Appellant argues that his sentence is manifestly unreasonable, such that

it constitutes too severe a punishment, even though his sentence fell within

the statutory limits. Such a claim, when adequately supported, has been held

by our Supreme Court to constitute a substantial question for review. See

Commonwealth           v.   Mouzon,      812     A.2d   617,   627-28   (Pa.   2002).2

Furthermore, Appellant also argues that the trial court failed to offer specific

reasons as to how the imposed sentence for rape of a child “comports with

the considerations required in 42 Pa.C.S. § 9721(b)[,]” where the court

imposed the statutory maximum for that offense. Appellant’s Brief at 49. This

claim also constitutes a substantial question for our review. See Mouzon,

812 A.2d at 627. Accordingly, we now turn to assess the merit of Appellant’s

sentencing claims.

       Sentencing is a matter vested in the sound discretion of the
       sentencing judge, and a sentence will not be disturbed on appeal
____________________________________________


2 However, “bald allegations of excessiveness” do not constitute substantial
questions. Id. at 627. Here, Appellant has provided at least something more
than a bald assertion that his sentence was excessive.

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      absent a manifest 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. Hoch, 936 A.2d 515, 517–18 (Pa. Super. 2007) (citation

omitted).

      Here, Appellant was sentenced within the standard range of the

sentencing guidelines for rape of a child, and in the mitigated range of the

guidelines for UCWM.     In the circumstances of this case, the standard

sentencing range for Appellant’s rape of a child conviction extended to the

statutory maximum for that offense—20-40 years’ incarceration—which is

precisely the term of years imposed by the trial court. In addition, the court

imposed a consecutive term of 5-10 years’ incarceration for UCWM.

      Appellant complains that the trial court’s reasons for imposing the

statutory maximum sentence for rape of a child were inadequate. Appellant

concedes that the trial court offered the following reasoning at sentencing:

      Okay. Mr. Wade, I’ve read your Pre-Sentence Report and would
      note for the record that you really haven’t done very much in your
      life probably because you were incarcerated for a term of not less
      than 15 nor more than 30 years[’ incarceration] for a prior rape.
      This then would make you a rapist for the second time.

           In this case the victim was ten years old. You had an
      enormous impact on her life. She started to believe that this was
      a romantic relationship, not realizing that she was the child and
      you were the adult. You had sex with her multiple times.




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N.T. Sentencing, 6/5/17, at 10. Appellant also concedes that the trial court

had the benefit of a pre-sentence investigation report (PSI). Appellant’s Brief

at 55.

         Essentially, Appellant argues that the trial court imposed the sentence

“with an intense focus on the impact of the crime on the victim” and on

Appellant’s criminal history, which are both factors ostensibly accounted for in

the sentencing guidelines through the calculation of Appellant’s offense gravity

score and his prior record score. Id. at 57-58. However, Appellant complains,

“[n]o mention is made of [Appellant]’s educational history, mental health,

family history, or need[] for rehabilitation.” Id. at 58.

         We ascertain no abuse of discretion in the imposed sentence. As our

Supreme Court has held:

         Where [a PSI] exist[s], we shall continue to presume that the
         sentencing judge was aware of relevant information regarding the
         defendant’s character and weighed those considerations along
         with mitigating statutory factors. A [PSI] constitutes the record
         and speaks for itself. In order to dispel any lingering doubt as to
         our intention of engaging in an effort of legal purification, we state
         clearly that sentencers are under no compulsion to employ
         checklists or any extended or systematic definitions of their
         punishment procedure. Having been fully informed by the PSI,
         the sentencing court’s discretion should not be disturbed. This is
         particularly true, we repeat, in those circumstances where it can
         be demonstrated that the judge had any degree of awareness of
         the sentencing considerations, and there we will presume also that
         the weighing process took place in a meaningful fashion.

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). Here, it is conceded

that the trial court had the benefit of a PSI, and the court indicated at

sentencing that it “ordered, read, and considered [the PSI] prepared [o]n


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[Appellant]’s behalf.” N.T. Sentencing at 2. Appellant did not object to the

contents of the PSI at sentencing or in a post-sentence motion.

      Moreover, although Appellant argues that the court failed to consider

his “educational history, mental health, family history, or need[] for

rehabilitation[,]” he fails to color this claim with any degree of specificity.

Appellant’s Brief at 58. As such, we may as well assume that none of those

factors substantially counter-balance the gravity of Appellant’s crimes in the

context of his prior criminal record of sexual offenses, at least insofar as would

be required to successfully challenge the discretion of the trial court at

sentencing.

      Finally, Appellant likens this matter to Commonwealth v. Coulverson,

34 A.3d 135 (Pa. Super. 2011). In that case, this Court determined that the

trial court had abused its discretion by imposing an aggregate sentence of 18-

90 years’ incarceration, essentially assuring that Coulverson would be subject

to state supervision for the remainder of his life, where the trial court had

essentially ignored mitigating factors, despite having the benefit of a PSI. In

that case, the trial court had “focused its consideration entirely on the severity

of Coulverson’s offenses and the victims’ impact statements.”        Id. at 150.

However, there was substantial mitigating evidence, such as “the dysfunction

that marked Coulverson’s own life, his cooperation and remorse, his attempts

at reclaiming a productive role in society, [and] the possibility that … he might

succeed at rehabilitation….” Id.




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     Here, however, Appellant has not expressed remorse (as he continued

to deny his culpability at the time of sentencing). See N.T. Sentencing at 3.

Appellant was nearly twice as old as Coulverson was at the time of their

respective crimes.   See N.T. Trial at 29; Coulverson, 34 A.3d at 140.

Appellant had a prior conviction for rape, whereas Coulverson had no prior

record whatsoever. Coulverson, 34 A.3d at 143. Appellant has provided no

evidence regarding his potential for rehabilitation; indeed, as noted above,

Appellant has only provided this Court with a boilerplate argument that the

trial court failed to consider mitigating factors, whereas the mitigation

evidence before us in Coulverson was detailed and extensive. Accordingly,

we conclude that Coulverson does not control in this case. Thus, for all of

the above-stated reasons, we ascertain no abuse of discretion in Appellant’s

sentence.

     Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/5/2019




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