Com. v. Thompkins, K.

J-A06013-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

KEVIN DAVID THOMPKINS :

:

Appellant : No. 706 WDA 2020

Appeal from the Judgment of Sentence Entered February 25, 2020

In the Court of Common Pleas of Blair County Criminal Division at No(s):

CP-07-CR-0002180-2018

BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED: JUNE 3, 2021

Kevin David Thompkins (“Appellant”) appeals from the judgment of

sentence of an aggregate term of 23 to 46 years’ imprisonment, imposed after

he was convicted of rape by forcible compulsion, involuntary deviate sexual

intercourse by forcible compulsion, aggravated assault, strangulation, criminal

trespass, terroristic threats, unlawful restraint, false imprisonment, simple

assault, recklessly endangering another person, and indecent assault by

forceful compulsion.1 Appellant alleges the verdict is against the weight of the

evidence and challenges the trial court’s denial of his request for a mistrial.

Appellant also asserts that his sentence is manifestly excessive and an abuse

of the trial court’s discretion. After careful review, we affirm.

____________________________________________

1 18 Pa.C.S. §§ 3121(a)(1), 3123(a)(1), 2702(a)(1), 2718(a)(1), 3503(a)(1),

2706(a)(1), 2902(a)(1), 2903(a), 2701(a)(1), 2705, and 2126(a)(2),

respectively.

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The trial court did not provide a summary of the facts adduced at

Appellant’s jury trial in either of its Pa.R.A.P. 1925(a) opinions issued in this

matter. Thus, we reproduce the Commonwealth’s factual summary of the

events that led to Appellant’s convictions.

On November 1, 2018, Ann Myers, 46 years old, stayed at a motel.

The same day, she went to a bar. Between 5 p[.]m[.] and 9

p[.]m[.] in the evening of the same day, she was contacted by

[Appellant], an individual known to her, who requested to

accompany her to another bar. She refused, which angered

[Appellant] and established [his] motive to retaliate. As Ms. Myers

was heading back from the bar towards her motel room, she

stopped her vehicle at [a] red light, at which time, her vehicle got

hit by [Appellant’s] car.

Ms. Myers attempted to drive an alternate route to evade

[Appellant and] to return to her motel. However, as [she] was

attempting to close the door of her motel room, [Appellant]

appeared behind her and put his foot in the doorway and then

grabbed [a]hold of her and pushed her on the bed inside the room.

In an attempt to subdue [her], [Appellant hit her in the face with]

a taser (not the electric part) …. While hitting [her], [Appellant]

kept repeating, “Do you want this? Do you want this?” After

securing a hold of the victim with physical violence and a threat

of employing a taser, [Appellant] started strangling [her]. [Ms.

Myers] testified to being unable to breathe to the point that she

had to start hitting her bed to obtain access to air. Believing that

her life [was] at risk, [she] pretended to lose consciousness in

hopes that [Appellant] would stop the crime. However, that only

incited the nefarious … and vicious ill will of [Appellant] and

formed in [Appellant’s] mind the motive to obtain a carnal

knowledge of the victim by involuntarily inserting his penis into

the vagina of the victim. [Ms. Myers] described the strangulation

simultaneously occurring with her rape as an act “of squeezing

[her] life … out of [her].” [Appellant] then proceeded to penetrate

the victim’s anal cavity with a finger splint, as well as inserted

[sic] his penis in the victim’s mouth about 2 to 3 times while

exclaiming, “do what daddy says.” The victim also testified to

knowing that [Appellant] had a pocket knife on him. At the

conclusion of the act, [Appellant] removed [Ms. Myers’s] keys and

her phone[,] as well as used physical force[,] to keep [her] from

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escaping and from reporting to [the] police. [Ms. Myers] testified

that she urinated on herself due to the inability to stand up from

the bed caused by [Appellant]. [She] testified that while being

raped, strangled[,] and assaulted[,] she kept praying to God that

her kids would not end up receiving a call that their mother [was]

found dead in a [m]otel.

The … assault continued for hours through the night. [Appellant]

then demanded money from [Ms. Myers], which allowed [her] an

opportunity to get the keys to her car from [Appellant], and

pretend to go to her parked car outside to retrieve money from

her wallet, while [Appellant] watched her. When [she] felt she

could escape, she drove directly to a Sheetz store [that] she knew

would be open at 5 a.m., at which point she entered the store,

immediately approached the counter, and asked the cashiers to

call [the] police.

While at the Sheetz store, a store clerk observed Ms. Myers who

was very loudly and frantically asking for someone to call [the]

police[,] as she needed help; she appeared scared as if someone

was going to “come get her,” upset, distressed, and was

constantly moving.

[Ms. Myers] described the numerous injuries she sustained as a

result of [Appellant’s] conduct: bruising on [her] chin,

discoloration of [her] cheeks, [which she stated] turned into black

and blue colors, as well as injuries to her neck. [She] testified

that as a result of her injuries, she could not swallow without pain

for at least 2 to 3 weeks and wasn’t … able to catch her breath,

and [she] continues to experience severe anxieties. [She also]

testified to the severe psychological trauma, which she described

as devastating to her life. She further characterized that as a

result of [Appellant’s] crime, Ms. Myers now cannot form a loving

and caring relationship as her life has changed upside down. Ms.

Myers testified that she never agreed to have sex with [Appellant],

never asked for any sex, [and] never wanted to engage in a

relationship or intimate intercourse with [Appellant] that night.

Commonwealth’s Brief at 5-8 (unnecessary capitalization and citations to

record omitted).

At trial, Appellant presented a far different version of events.

Appellant’s Brief at xiii. He claimed to have met Ms. Myers in August of 2018.

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She was a long-haul truck driver, and he was in the process of obtaining his

CDL. Id. He claims that Ms. Myers told him she was an instructor for a driver

training program with the trucking company she worked for, and she offered

to take him on an upcoming trip. He stated that she even offered to pay him

$500 per week for his company and that he accepted. Id. After Ms. Myers’

obtaining authorization from her trucking company, Appellant asserts that he

accompanied her on two trips, during which they began a sexual relationship.

Id. Upon their return from the trips, he stated he discovered that “the

trucking company did not in fact have a training program and that Ms. Myers

had fabricated the entire thing.” Id. Appellant confronted her about the lie,

but stated that they remained friends, and that they would occasionally “meet

up for drinks and sex” when she was in town. Id.

Appellant’s version of the events that transpired on the night in question

was as follows:

On the night of November 1, 2018, [Appellant] stated that he

received multiple calls and texts from Ms. Myers stating that she

was in town and asking him to come meet her at the bar. She

claimed to have some money she still owed him from their earlier

trips that he had long since given up on. He eventually agreed to

meet her. By the time [Appellant] arrived at the bar, Ms. Myers

was already in her car. They had been speaking on the phone as

he drove from Gallitzin to Altoona. She told him to follow her back

to the Motel 6. While stopped at a traffic light, [Appellant] gently

bumped the back of [her] car, then pulled around in front of her

as they proceeded to the motel. They parked next to each other

and entered the motel room.

They sat at the small table, [Appellant] pulling up a cooler to sit

on as there was only one chair. Ms. Myers began drinking from a

bottle of fireball whiskey. Mr. Thompkins was not drinking due to

a serious table saw injury to his finger the previous day which

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required antibiotics and thick bandaging. They engaged in small

talk[,] and Ms. Myers suggested that [Appellant] come out on the

road with her again. He declined. After some time, [Appellant’s]

hand started throbbing[,] so he went over to the bed and laid

down. Soon thereafter, Ms. Myers asked if he wanted to have sex

and he agreed. She came over to the bed and began to perform

oral sex on him before transitioning to vaginal sex at her request.

After, they went to sleep for a short time. Around 4:30 the next

morning, [Appellant] woke up. Ms. Myers was just waking up as

well. She again asked [him] to go out on the road with her. He

refused, reminding her that she still owed him money from the

first two trips. She pleaded with him, insisting that she would

have the money. She asked him to leave his longtime girlfriend

and be with her instead. When he made it clear that was not ever

going to happen[,] she became upset and tearful. [Appellant] got

dressed and left the motel room. He was shocked and confused

when [the] police arrested [him] the following day.

Id. at xiv-xv.

Appellant was arrested and charged with rape by forcible compulsion,

involuntary deviate sexual intercourse by forcible compulsion, burglary of an

occupied structure adapted for overnight accommodation, aggravated assault

(attempting to cause serious bodily injury), strangulation during a sexual

assault, criminal trespass, terroristic threats, unlawful restraint, false

imprisonment, simple assault (attempting to cause bodily injury), simple

assault by physical menace, recklessly endangering another person, and

indecent assault. See id. at ix. Appellant’s trial commenced on December 9,

2019. On December 11, 2019, after the conclusion of the three-day trial, “the

jury returned a guilty verdict on all counts, with the exception of the charge

of burglary and the sexual violence component of the charge of strangulation,

convicting only of strangulation without sexual violence.” Id.

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The trial court ordered a pre-sentence investigation (“PSI”), sentencing

memorandums, and the production of the Sentencing Guidelines prior to

sentencing. Trial Court Opinion (“TCO I”), 8/19/20, at 3. A sentencing

hearing was conducted on February 25, 2020. After hearing testimony from

Daneen Hoover, Appellant’s paramour and mother of his children, and from

Appellant, and taking into consideration the arguments made by counsel for

each party, Appellant was sentenced to 23 to 46 years’ imprisonment, followed

by 15 years’ probation. Id. Subsequently,

Appellant filed a timely[,] omnibus post-trial motion on March 6,

2020, claiming that the verdict was against the weight of the

evidence and requesting the court modify his sentence. He also

sought additional time to file supplemental motion(s) after the

completion of the trial transcripts, which the court granted by

order dated March 19, 2020. Upon the court’s receipt of notice

that the transcripts were completed on May 4, 2020, an order

directed any supplemental post-trial motions be filed on or before

June 3, 2020. On June 3, 2020, [Appellant] filed a supplemental

motion for new trial, reiterating his position that the verdict was

against the weight of the evidence and seeking a new trial. This

court issued an order denying the omnibus post-trial motion and

the supplemental motion for new trial by opinion dated June 9,

2020….[2]

Id. (unnecessary capitalization omitted).

On July 8, 2020, Appellant filed a timely notice of appeal, followed by a

timely, court-ordered Pa.R.A.P. 1925(b) concise statement of matters

complained of on appeal. Herein, Appellant presents the following issues for

our review:

____________________________________________

2 See Trial Court Opinion (“TCO II”), 6/9/20.

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1. Whether the interests of justice entitle [Appellant] to a new

trial[,] as the jury’s verdict was against the weight of the

evidence such that it effectively shocked the conscience[?]

2. Whether the [t]rial [c]ourt abused its discretion when it denied

[Appellant’s] request for a mistrial on the grounds that the

Commonwealth deliberately elicited inadmissible testimony

that was so prejudicial that it prevented the jury from weighing

and rendering a true verdict[?]

3. Whether the sentencing court committed an abuse of discretion

by running the sentences on each count consecutively, creating

an aggregate sentence that is manifestly unreasonable[?]

Appellant’s Brief at viii.

Our standard of review for evaluating a weight-of-the-evidence claim is

well-established:

When the challenge to the weight of the evidence is predicated on

the credibility of trial testimony, our review of the trial court’s

decision is extremely limited. Generally, unless the evidence is so

unreliable and/or contradictory as to make any verdict based

thereon pure conjecture, these types of claims are not cognizable

on appellate review. Moreover, where the trial court has ruled on

the weight claim below, an appellate court’s role is not to consider

the underlying question of whether the verdict is against the

weight of the evidence. Rather, appellate review is limited to

whether the trial court palpably abused its discretion in ruling on

the weight claim.

Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (citations

omitted). “A true weight of the evidence challenge concedes that sufficient

evidence exists to sustain the verdict but questions which evidence is to be

believed.” Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa. Super.

2006) (citation omitted). Therefore, “[a]n 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

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the evidence,” as the trial judge is in the best position to view the evidence

presented. Id. (quoting Commonwealth v. Wright, 865 A.2d 894, 915 (Pa.

Super. 2004)). Moreover, “it is for the fact-finder to make credibility

determinations, and the finder of fact may believe all, part, or none of a

witness’s testimony.” Gibbs, 981 A.2d at 282 (citation omitted).

Instantly, Appellant asserts that the majority of the evidence against

him was supplied by Ms. Myers and that her “behavior throughout the trial[,]

as well as her numerous inconsistent statements[,] rendered her a uniquely

unreliable witness.” Appellant’s Brief at xvi ¶1. He claims that his conviction,

based on “such threadbare evidence[,] shocks the conscience and denies

justice.” Id. In fact, Appellant argues, “[n]o reasonable person could find

Ms. Myers’ testimony to be credible in its entirety.” Id. at 2. Appellant’s

weight challenge is based primarily on alleged inconsistencies in Ms. Myers’

testimony and his opinion that she was not a credible witness. See id. at 2-

8. However, his attacks on her credibility have no merit.

It is well-settled that “the jury [is] the ultimate fact-finder and the sole

arbiter of the credibility of each of the witnesses.” Commonwealth v.

Jacoby, 170 A.3d 1065, 1080 (Pa. 2017). “[I]nconsistencies in eyewitness

testimony are not sufficient to warrant a new trial on grounds that the verdict

was against the weight of the evidence.” Id. at 1081 (citation omitted).

“Issues of witness credibility include questions of inconsistent testimony and

improper motive.” Id. (citation omitted). “A jury is entitled to resolve any

inconsistencies in the Commonwealth’s evidence in the manner that it sees

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fit.” Id. (citation omitted). Additionally, “the uncorroborated testimony of a

sexual assault victim, if believed by the trier of fact, is sufficient to convict a

defendant, despite contrary evidence from defense witnesses.” Charlton,

902 A.2d at 562 (citation omitted).

To the extent that Appellant points to self-serving, contradictory

evidence presented at trial,3 and essentially asks this Court to re-weigh the

evidence, we note that this is beyond our scope of review. See

Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa. Super. 2015). “The

jury, as finder of fact, had the duty to determine the credibility of the

testimony and evidence presented at trial.” Id. See also Commonwealth

v. Collins, 70 A.3d 1245, 1251 (Pa. Super. 2013) (stating that “[a]n appellate

court cannot substitute its judgment for that of the finder of fact[]”). Here,

the jury was free to believe Ms. Myers’ testimony and to disbelieve that of

Appellant. Likewise, it was free to resolve any inconsistencies in the evidence

in the manner which it saw fit. See Jacoby, supra.

The trial court explained its denial of Appellant’s motion for a new trial

as follows:

A trial judge, in reviewing a claim that the verdict is against the

weight of the evidence[,] does not sit as the thirteenth juror.

____________________________________________

3 For instance, Appellant references the testimony of Jamie Weigand, the

nurse who performed the sexual assault examination on Ms. Myers. See

Appellant’s Brief at 3-4 (citing N.T. Trial, 12/10/19, at 93-94). Ms. Weigand

admitted that the documentation of her examination contained no indication

of genital injuries, bruising, irritation, redness, or tenderness. Id. We note,

however, that Ms. Weigand also testified that Ms. Myers could not sit on the

examination table, because “it hurt so bad.” N.T. Trial, 12/10/19, at 22.

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Rather, the role of the trial judge is to determine that[,]

“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.” Helpin v. Trustees of

University of Pennsylvania, 969 A.2d 601, 616 (Pa. Super.

2009) (citing [Commonwealth v.] Widmer, [744 A.2d 745, 751-

52 (Pa. 2000)]). While [Appellant] may believe the victim’s

testimony was “unreliable, inconsistent and untruthful[,]” there is

certainly a basis for the jury to find otherwise. In fact, the jury

acquitted [Appellant] of the burglary charge and also made a

finding on the grading of the strangulation charge[,] leading this

court to conclude that they were able to evaluate all of the

evidence and follow the law in reaching decisions resulting in their

verdicts. After consideration of [Appellant’s] motions and the

entirety of the trial record in conjunction with the applicable law,

we decline to find that the jury verdicts were against the weight

of the evidence and[,] therefore, also deny [Appellant’s] request

for a new trial.

TCO II at 3-4 (unnecessary capitalization omitted; emphasis in original). We

agree with the trial court that the verdict is not so contrary to the evidence as

to shock the conscience. Thus, we conclude that the trial court did not abuse

its discretion in denying Appellant’s weight-of-the-evidence claim.

Next, Appellant avers that the trial court abused its discretion in denying

his request for a mistrial on the grounds that “the Commonwealth deliberately

elicited inadmissible testimony that was so prejudicial … it prevented the jury

from weighing and rendering a true verdict.” Appellant’s Brief at 11. In

reviewing this claim, we remain mindful of the following:

The decision to declare a mistrial is within the sound discretion of

the court and will not be reversed absent a “flagrant abuse of

discretion.” Commonwealth v. Cottam, … 616 A.2d 988, 997

([Pa. Super.] 1992); Commonwealth v. Gonzales, … 609 A.2d

1368, 1370-71 ([Pa. Super.] 1992). A mistrial is an “extreme

remedy … [that] … must be granted only when an incident is of

such a nature that its unavoidable effect is to deprive [the]

defendant of a fair trial.” Commonwealth v. Vasquez, … 617

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A.2d 786, 787-88 ([Pa. Super.] 1992) (citing Commonwealth v.

Chestnut, … 512 A.2d 603 ([Pa.] 1986)[,] and Commonwealth

v. Brinkley, … 480 A.2d 980 ([Pa.] 1984)). A trial court may

remove taint caused by improper testimony through curative

instructions. Commonwealth v. Savage, … 602 A.2d 309, 312-

13 ([Pa.] 1992); Commonwealth v. Richardson, … 437 A.2d

1162 ([Pa.] 1981). Courts must consider all surrounding

circumstances before finding that curative instructions were

insufficient and the extreme remedy of a mistrial is required.

Richardson, … 437 A.2d at 1165. The circumstances which the

court must consider include whether the improper remark was

intentionally elicited by the Commonwealth, whether the answer

was responsive to the question posed, whether the

Commonwealth exploited the reference, and whether the curative

instruction was appropriate. Id.

Commonwealth v. Stilley, 689 A.2d 242, 250 (Pa. Super. 1997), abrogated

on different grounds, Commonwealth v. Butler, 812 A.2d 631 (Pa. 2002).

The testimony at issue in the instant matter was the following discourse

between the Commonwealth and Ms. Weigand regarding her forensic

examination of Ms. Myers:

[Commonwealth]: What physical manifestations did you observe

during that visual examination of [Ms. Myers]

that supported the strangulation?

[Ms. Weigand]: She had what appeared to be fingerprints on

the right side of her neck and she had a large

amount of swelling to the left side of her neck.

She also had some bruising to her cheek. And

further on in the exam when we were looking

inside of her frenulum[,] which would be the

upper part between your teeth and your gums,

she had some petechiae that is indicative of a

strangulation type of injury.

[Commonwealth]: Can you explain to the jury what petechiae is?

[Ms. Weigand]: Petechiae is that your body uses hemoglobin

and so when the little capillaries—so for

instance when someone is being strangled, the

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capillaries themselves are starving for oxygen

and they disrupt and then that is what gives

so petechiae are tiny little wee bruises. They

can either [be] blue or red in color and they

are tiny little spots.

[Commonwealth]: And you indicated that the location of the

particular petechiae were significant to you to

support the strangulation?

[Ms. Weigand]: Correct.

N.T. Trial, 12/10/19, at 23-24.

Appellant argues that Ms. Weigand, who had not been accepted as an

expert witness and was testifying as a layperson, was prohibited from offering

her opinion as to the significance of observing petechiae on Ms. Myers’

frenulum. Appellant’s Brief at 13 (citing Pa.R.E. 702(a) (providing that expert

testimony is permitted where the witness’s scientific, technical, or other

specialized knowledge is beyond that possessed by the average layperson)).

Nonetheless, Appellant asserts that the prosecutor specifically asked Ms.

Weigand to “educate the jury on the subject.” Id. Despite the fact that the

trial court sustained defense counsel’s objection to the admission of this

evidence and ordered Ms. Weigand’s testimony regarding the formation of

petechiae be stricken from the record, id. (citing N.T. Trial, 12/10/19, at 48),

Appellant claims that he was prejudiced, as the jury had already heard her

testimony. Id. More specifically, he alleges:

First, Ms. Weigand’s training and experience had not been

examined and thus she had not demonstrated that she was

qualified to render an opinion on the subject. Second, the medical

reports made no mention of the presence of petechiae and[,]

thus[, Appellant] was not prepared to challenge or refute the

soundness of Ms. Weigand’s opinion by means of either cross-

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examination or a defense expert. Finally, if the jury were to

accept Ms. Weigand’s opinion as true, it would effectively destroy

[Appellant’s] defense that Ms. Myers’[] injuries were self-inflicted.

Id. at 13-14. Additionally, Appellant asserts that not only was the testimony

elicited by the Commonwealth, but that this was a deliberate attempt on the

part of the Commonwealth to prejudice the jury with inadmissible testimony.

Id. at 17. As a result, Appellant claims he was denied a fair trial and that, in

denying his request for a mistrial, the trial court failed to account for the

“significant prejudice” that the testimony caused him. Id. at 20, 21-22.

After a lengthy discussion outside the presence of the jury regarding the

admissibility of Ms. Weigand’s testimony, the trial court addressed the jury as

follows:

So[,] from time to time[,] there are things that we need to hear

outside your presence and … it was just easier to put you in a

deliberation room while we took care of those matters. The

[c]ourt has made a ruling. You heard this witness testify to

petechiae in the frenulum of Ms. Myers[’] mouth and the same

being indicative of strangulation. The [c]ourt has ruled this

evidence inadmissible. In other words, you are not to consider

that portion of the testimony and you are to disregard it.

N.T. Trial, 12/10/19, at 63-64.

Appellant argues that the court’s “bare instruction” to simply disregard

this portion of Ms. Weigand’s testimony, without providing the jury with an

explanation as to why the evidence is inadmissible, was insufficient to cure its

prejudicial effect. Appellant’s Brief at 19. In fact, Appellant suggests that

the jury was “incapable” of disregarding the testimony. Id. He stresses that,

“[r]ather than mitigate the prejudice, the [c]ourt’s repetition of the prejudicial

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statement in the curative instruction focused the jurors’ attention on [the]

most prejudicial aspect of it, firmly fixing it in the minds of the jury and

increasing its prejudicial effect.” Id. at 19-20. Appellant is not entitled to

relief on this claim.

First, as to his suggestion that the jury was incapable of ignoring the

stricken testimony, “[i]t is well settled that juries are presumed to follow the

instructions of a trial court to disregard inadmissible evidence.”

Commonwealth v. Manley, 985 A.2d 256, 268 (Pa. Super. 2009). See also

Commonwealth v. Jones, 668 A.2d 491, 504 (Pa. 1995) (declaring that the

jury is presumed to follow cautionary instructions from the court). Moreover,

we deem the trial court’s instruction to be clear and specific as to the portion

of Ms. Weigand’s testimony that the jury was required to disregard. See

Commonwealth v. Thompson, 106 A.3d 742 (Pa. Super. 2014) (stating that

the trial court’s curative instructions must be clear and specific, and that the

court must instruct the jury to disregard the improper evidence). Since the

trial court properly instructed the jury to disregard Ms. Weigand’s testimony

that she observed petechiae on Ms. Myers’ frenulum, and that it was indicative

of strangulation, we presume that the jury followed the court’s instructions in

reaching its verdict.

In response to Appellant’s claims regarding the prejudicial effect of the

jury’s having heard Ms. Weigand’s testimony, and his being deprived of a fair

trial as a result of the trial court’s denial of his request for a mistrial, the court

opined:

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In denying the mistrial, this court did not find that the response

was elicited by the Commonwealth in an effort to violate

[Appellant’s] constitutional right to a fair trial or to overreach. The

jury had already heard about the physical manifestations to the

victim’s neck (red marks, swelling, bruising) from several other

pieces of evidence/testimony, including [Ms. Myers], Jennifer

F[o]wler (paramedic), a layperson (Sheetz employee)[,] and [it

had] watched the body cam interview of Officer Talamo. [Ms.

Myers] testified that she was strangled with “his hands around her

neck” and he “straddled her.” She told the jury that she was not

able to breathe. He squeezed harder and she kept “hitting the

bed trying to get her breath.” [Ms. Myers] testified that …

Appellant did this for hours and applied pressure of “100” on a

scale of 1 to 10. She also described that his hands were on her

neck during a “couple” of the sexual assaults, “squeezing my life,

my breath out of me[.”] [She] recalled that the paramedics tried

putting a collar around her neck, but she could not comply

because of all the choking by … Appellant. On cross examination,

[Ms. Myers] testified that … Appellant grabbed her by the throat.

Also, in response to cross-examination, [she] stated that …

Appellant pushed her onto the bed and started to strangle her.

During the assault, … Appellant demanded money[,] according to

[Ms. Myers]. He would demand the money and grab her throat,

lifting her off the ground. [Ms. Myers] consistently said that …

Appellant raped her, choked her[,] and strangled her “for hours.”

She described losing her breath on multiple occasions due to being

choked. [She] told the jury that when she got away from

[Appellant,] she went to Sheetz to obtain help. Brenda Rhinehart,

a Sheetz employee, who encountered [Ms. Myers,] testified that

she saw red marks on the victim’s neck and arms. The jury saw

the police officer’s body cam and heard [Ms. Myers] tell the police

officers that she could not lift her neck because it was painful, as

a result of being choked. Jennifer Fowler, the treating paramedic,

testified that she saw red marks that looked like handprints on her

throat which were raised[,] and some swelling on the one side.

Ms. Fowler corroborated [Ms. Myer’s] testimony relative to the

introduction of a c-spine collar for stabilization of the neck. She

further told the jury that the victim had an adverse reaction to the

request to place a medical collar around her neck. Therefore, …

Appellant is simply incorrect when saying that the inadmissible

response “provided some of the only objective evidence of [his]

guilt that did not rely on the alleged victim’s credibility.”

TCO I at 9-11 (unnecessary capitalization and citations to the record omitted).

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The trial court also rejected Appellant’s argument that he was denied

the opportunity to consult with an expert:

First, the elements of strangulation do not require physical injury.

Second, the defense strategy did not change by this one passing

reference of petechiae from Ms. Weigand. A viable defense

strategy was that the victim could have caused the injuries to

herself, which strategy remained intact after the ruling. The

defense had the ability to hire an expert to determine if the

manifestations on [Ms. Myers’] body could have been self-

inflicted. The defense had all of the information from the rape kit,

including the twelve[-]page document with the [sexual assault

forensic examiner’s] notes and the photos. The defense did not

separately conduct an interview of the nurse to determine if an

expert was necessary.

Id. at 11 (unnecessary capitalization and citations to the record omitted).

In conclusion, the trial court noted that “[t]he instant matter and the

circumstance leading to the mistrial request are a sharp contrast to matters

such as Commonwealth v. Durant, 407 A.2d 1311 (Pa. Super. 1979),

wherein a Commonwealth witness on cross-examination purposefully

volunteered the defendant’s previous incarceration in an effort to poison the

jury.” Id. at 11-12. It observed that the Durant Court determined that the

remarks were not curable with an instruction to the jury and deemed the trial

court’s failure to grant a mistrial reversible error. Id. at 12 (citing Durant,

407 A.2d at 1312). We agree with the trial court that “[f]or all of the reasons

set forth above, any possible taint that the single reference to petechiae

created at that point in the proceeding was cured by the [c]ourt’s instruction

to disregard the same as inadmissible.” Id. Moreover, “[a]ll available

defenses remained intact and[,] thus, [Appellant] was not deprived of a fair

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trial.” Id. Accordingly, we discern no abuse of discretion in the trial court’s

denial of Appellant’s request for a mistrial.

Finally, Appellant claims that his sentence is manifestly excessive and

unreasonable. Appellant’s Brief at 22. While he concedes that the trial court

sentenced him within the standard guideline ranges on each count, see id. at

xvi, he claims that “the court’s imposition of multiple sentences [to run]

consecutively to each other illustrates a flagrant disregard for the nature and

circumstances of [his] criminal history.” Id. at 23. Appellant’s allegations

relate to the discretionary aspects of his sentence.

Challenges to the discretionary aspects of sentencing do not

entitle an appellant to review as of right. An appellant challenging

the discretionary aspects of his sentence must invoke this Court’s

jurisdiction by satisfying a four-part test:

We conduct a four-part analysis to determine: (1) whether

[the] 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 [the]

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).

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

and internal quotations omitted).

Here, the record clearly reflects that Appellant filed a timely notice of

appeal, properly preserved his claim in his post-sentence motion, and included

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a separate, concise Rule 2119(f) statement in his appellate brief. Thus, we

proceed to determine whether Appellant has raised a substantial question to

meet the fourth requirement of the test outlined above.

Instantly, Appellant recognizes that an excessive sentencing claim

based on the imposition of consecutive rather than concurrent sentences does

not automatically raise a substantial question. Appellant’s Brief at xix.

Nevertheless, he asserts that the court’s imposition of consecutive sentences

resulted in an aggregate sentence of 23 to 46 years’ incarceration for

convictions that stemmed from a single incident, and that because of his age,

he will likely remain incarcerated for the rest of his life. Id. at 23-24.

Moreover, Appellant argues that his aggregate sentence “suggests an

unjustifiable concern for public safety stemming from a single event coupled

with an outright rejection of any of the mitigating factors presented by defense

counsel.” Id. at 24. He suggests that the trial court failed to consider that

his criminal history was decades old and that its reference to his “history of

assaultive behavior” during sentencing portrays Appellant “as a man who has

both squandered any opportunity for rehabilitation and has remained,

throughout his life, a violent menace to society[,]” which he claims is “simply

not accurate[.]” Id. at 23.

As we explained in Commonwealth v. Dodge, 77 A.3d 1263 (Pa.

Super. 2013),

[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

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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.

In determining whether a substantial question exists, this Court

does not examine the merits of whether the sentence is actually

excessive. Rather, we look to whether the appellant has

forwarded a plausible argument that the sentence, when it is

within the guideline ranges, is clearly unreasonable.

Concomitantly, the substantial question determination does not

require the court to decide the merits of whether the sentence is

clearly unreasonable.

Id. at 1270 (internal citations and footnote omitted; emphasis in original).

Additionally, 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. Caldwell, 117

A.3d 763, 770 (Pa. Super. 2015) (internal quotation marks and citations

omitted).

Based on our review of the foregoing precedents, we conclude that

Appellant’s challenge to the imposition of his consecutive sentences as unduly

excessive, together with his claim that the court failed to consider the nature

and circumstances of his criminal history, presents a substantial question.

Thus, we proceed to examining the merits of his sentencing claim.

When reviewing a challenge to the discretionary aspects of a sentence,

we determine whether the trial court has abused its discretion. Id. at 771.

Sentencing is a matter vested in the sound discretion of the

sentencing judge, and a sentence will not be disturbed on appeal

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

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judgment for reasons of partiality, prejudice, bias or ill will, or

arrived at a manifestly unreasonable decision.

***

When imposing a sentence, a court is required to consider the

particular circumstances of the offense and the character of the

defendant. In particular, the court should refer to the defendant’s

prior criminal record, his age, personal characteristics and his

potential for rehabilitation. Where the sentencing court had the

benefit of a [PSI], we can assume the sentencing court was aware

of relevant information regarding the defendant’s character and

weighed those considerations along with mitigating statutory

factors. Further, where a sentence is within the standard range

of the guidelines, Pennsylvania law views the sentence as

appropriate under the Sentencing Code.

Commonwealth v. Griffin, 65 A.3d 932, 935-36 (Pa. Super. 2013) (internal

citations and quotation marks omitted).

The record belies Appellant’s assertions that his aggregate sentence is

manifestly excessive and unreasonable, and that the trial court failed to

consider mitigating factors. As the trial court so aptly summarized:

[Appellant] was provided notice of why and how the court was

fashioning his sentence at the time of the sentencing hearing and

[the court] also referenced those considerations in [its] sentencing

order of February 25th. This jurist readily acknowledged at the

sentencing hearing and in the sentencing order that the [PSI] was

considered and made part of the record, as was all mitigating

information offered for [Appellant]. The court considered the fact

that [Appellant] was out of jail, awaiting trial for seven (7) months

while on pre-trial services and[,] further[,] that during his time in

jail he had earned certificates of achievement for his participation

in jail programs. The court heard from the mother of his children

and his partner that he was a good provider for their family. The

court also considered [Appellant’s] statements[,] including

remarks about his work history, that this incident was not

representative of who he is, and that his family needed him. The

undersigned also viewed the public safety in determining an

appropriate sentence for [Appellant]. Specifically, the court

explained that the nature of his criminal actions evidenced a need

to protect society. This was a brutal sexual attack, which lasted

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for hours. It involved more than one type of sexual and physical

assault for which the court found in its discretion required

accountability and sanctions for each act. [Appellant’s] prior

assaultive behavior was noted, as well as his prior opportunities

for rehabilitation. This court notes that the sentences imposed in

this case were all consistent with the standard range of the

Pennsylvania Sentencing Guidelines.

TCO II at 5 (unnecessary capitalization omitted). Moreover, the court stated

in its sentencing order: “The consecutive nature of this sentence is further

justified by the significant impact of the crimes upon the victim, [Appellant’s]

lack of remorse[,] and quite frankly, [that] the [c]ourt does not believe

[Appellant] is entitled to a volume discount for his criminal behavior…. [E]ach

act requires accountability.” Order, 2/25/20, at 5 (unpaginated). Appellant

“employed humiliating acts upon the victim[,] where he not only physically

and sexually assaulted her, [but] he [also] terrorized her.” Id.

After careful review of the record, we are satisfied that the trial court

gave appropriate consideration to the relevant factors before issuing

Appellant’s sentence, and we ascertain no abuse of discretion.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/3/2021

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