Com. v. Waters, A.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

ANTHONY DWAYN WATERS, JR. : No. 78 EDA 2025

Appeal from the Judgment of Sentence Entered August 8, 2024

In the Court of Common Pleas of Delaware County Criminal Division at

No(s): CP-23-CR-0001703-2023

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

ANTHONY DWAYN WATERS, JR. :

:

Appellant : No. 79 EDA 2025

Appeal from the Judgment of Sentence Entered August 8, 2024

In the Court of Common Pleas of Delaware County Criminal Division at

No(s): CP-23-CR-0001703-2023

BEFORE: BOWES, J., BECK, J., and FORD ELLIOTT, P.J.E.*

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 23, 2026

These matters are consolidated cross-appeals filed by Anthony Dwayn

Waters, Jr. (“Defendant”), and the Commonwealth of Pennsylvania from

Defendant’s judgment of sentence imposed by the Court of Common Pleas of

Delaware County following a trial at which a jury found Defendant guilty of

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* Retired Senior Judge assigned to the Superior Court.

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involuntary deviate sexual intercourse (“IDSI”) by forcible compulsion, sexual

assault, and indecent assault without consent. 1 Defendant, in his appeal,

challenges the denial of his motion to strike a prospective juror for cause and

raises two claims alleging the improper admission of hearsay. See

Defendant’s Brief for Appellant, 19-32 (79 EDA 2025). The Commonwealth,

in its appeal, challenges the discretionary aspects of Defendant’s sentence,

alleging that the trial court imposed a “manifestly unreasonable and

excessively lenient sentence.” See Commonwealth’s Brief for Appellant, 12-

22 (78 EDA 2025). After careful review of both appeals, we affirm the

judgment of sentence.

The trial court has summarized the facts for this criminal matter as

follows:

On June 24, 2021, police from [the] Darby Township Police

Department we[nt] to Taylor Hospital for a report of a sexual

assault arising from a June 22, 2021 criminal episode during which

[Defendant] had unlawful involuntary deviate sexual intercourse

and unlawful sexual contact with the [v]ictim[, D.B.] [D.B.] and

[Defendant] both worked the overnight shift at Walmart in

Glenolden, Delaware County, Pennsylvania. They became

friendly, and exchanged contact information, and would meet to

go on smoke breaks and talk. Approximately one week before the

sexual assault, [D.B.] and [Defendant] went on a break together

and began kissing, and [Defendant] tried to take it further. He

pulled out his penis, and [D.B.] told him [that] she did not want

to have sex with him, but she could use her hand to satisfy him.

[Defendant] said no. The break was ending, and the two of them

went back to work.

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1 18 Pa.C.S. §§ 3123(a)(1), 3124.1, and 3126(a)(1), respectively.

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On June 22, 2021, [D.B.] and [Defendant] again agreed to meet

for their break. On this day, [Defendant] suggested the two of

them walk to the loading dock behind[, another store,] Forman

Mills. [Defendant] and [D.B.] began kissing, and he again tried to

take it further. [D.B.] offered to satisfy him using her hand.

[Defendant] then turned her over, bent her down, and placed his

mouth on her vagina and private area, and then he attempted to

insert his penis in her vagina; when this was not working, he did

insert his penis into her anus. The assault ended when a truck

drove toward the loading dock. The two of them walked back to

work.

Trial Court Opinion, 4/22/25, 1-2 (section break added).

Defendant proceeded to a jury trial that commenced on May 7, 2024.

The Commonwealth presented testimony from the following witnesses: D.B.;

D.B.’s mother, A.B.; Police Officer Nicholas Pascale (the officer who was

dispatched to Taylor Hospital on June 24, 2021); Sergeant Kenneth Bellis (the

officer who obtained D.B.’s cellular phone for a data extraction and reviewed

a resulting forensic analysis report and the data and text messages recovered

from the phone); and Nurse Christine Belfiglio (a sexual assault nurse

examiner (“SANE”) who conducted a forensic exam of D.B. and collected

swabs of specimens from her for a rape kit). Defendant presented testimony

from his mother, Lorette Green-Roberts, as a character witness for his

reputation as a peaceful person. Counsel stipulated that, inter alia, there was

no autosomal DNA profiling analysis conducted in this case because an

insufficient amount of male DNA was detected on the analyzed rape kit swabs.

See N.T. Trial, 5/8/24 (Vol. 1), 30-31.

On May 9, 2024, the jury found Defendant guilty of the above-

referenced offenses and found him not guilty of rape by forcible compulsion

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and indecent assault by forcible compulsion. 2 See Verdict Sheet, 5/9/24, 1-

2; N.T. Trial, 5/9/24, 3-4. On August 8, 2024, the trial court sentenced

Defendant to concurrent terms of one to two years’ imprisonment, to be

followed by five years’ probation, for IDSI by forcible compulsion and sexual

assault; indecent assault without consent merged for sentencing purposes. 3

See Sentencing Order, 8/8/24, 1; N.T. Sentencing Hearing, 8/8/24, 32.

Defendant was subject to a mandatory three-year probation term pursuant to

42 Pa.C.S. § 9718.5(a). See N.T. Sentencing Hearing, 8/8/24, 32-33. In

addition, Defendant was subject to lifetime sexual offender registration

requirements pursuant to Subchapter H of the Sexual Offender Registration

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2 18 Pa.C.S. §§ 3121(a)(1) and 3126(a)(2), respectively.

3 The imprisonment term for IDSI was below the mitigated range

recommended by the Sentencing Guidelines: 48 to 66 months’ imprisonment,

plus or minus twelve months imprisonment for aggravating or mitigating

circumstances. See IDSI Guideline Sentence Form, 8/9/24, 1; N.T.

Sentencing Hearing, 8/8/24, 19 (Commonwealth referencing that Defendant

had “no prior record”); see also 204 Pa. Code § 303.15 (7th ed., amend 6)

(offense listing setting an offensive gravity score of twelve for IDSI under

Section 3123(a)(1)); 204 Pa. Code § 303.16(a) (7th ed., amend 6) (applicable

basic sentencing matrix). The imprisonment term for sexual assault was

below the mitigated range recommended by the Sentencing Guidelines: 36 to

54 months’ imprisonment, plus or minus twelve months of imprisonment for

aggravating or mitigating circumstances. See Sexual Assault Guideline

Sentencing Form, 8/9/24, 1; see also 204 Pa. Code § 303.15 (7th ed., amend

6) (offense listing setting an offensive gravity score of eleven for sexual

assault under sexual assault under Section 3124.1); 204 Pa. Code § 303.16(a)

(7th ed., amend 6).

Prior to trial, Defendant declined offers for a negotiated guilty plea to sexual

assault with a sentencing recommendation of three to six years’ imprisonment

or an open guilty plea to sexual assault. See N.T. Trial, 5/6/24, 6-8.

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and Notification Act (“SORNA”), 42 Pa.C.S. §§ 9799.10-9799.42. See 42

Pa.C.S. § 9799.14(d)(4) (designating IDSI as a Tier III sexual offense); 42

Pa.C.S. § 9799.15(a)(3) (requiring Tier III offenders to register for life).

Defendant and the Commonwealth both timely filed post-sentence

motions. Defendant challenged the sufficiency of the evidence in his motion.

See Defendant’s Post-Sentence Motion, 8/16/24, 1-3. The Commonwealth

requested modification and reconsideration of sentence in its motion. 4 See

Commonwealth’s Post-Sentence Motion, 8/15/24, 1-4. The parties each filed

____________________________________________

4 Relevant to the Commonwealth’s appeal, it asserted in its post-sentence

motion that: (1) the sentencing court “unreasonably deviated” from the

Sentencing Guideline’s recommended range for IDSI, see Commonwealth’s

Post-Sentence Motion, 8/12/24, ¶ 7-8, 10; (2) no mitigating factors were

presented to justify a mitigated range sentence, let alone a sentence with a

downward departure from the Sentencing Guidelines’ recommended ranges,

see id. at ¶ 9; (3) the court’s emphasis on Defendant’s lack of a criminal

record was a form of improper double counting of a factor already considered

by the Sentencing Guidelines, see id. at ¶ 11; (4) the sentencing court’s

statements, justifying the imposed term, “ran completely contrary to the

findings of fact made by the [j]ury,” id. at ¶ 12; (5) the court’s statements

indicating that Defendant was unsure of the victim’s lack of consent were

explicitly rejected by the jury’s verdict, see id. at ¶ 14; (6) the sentencing

court “demonstrated bias,” id. at ¶ 15; (7) the court’s sentence “completely

ignore[d] and invalidate[d] that rape and sexual assault is not something that

occurs just among strangers, but among acquaintances and people who may

have relationships of some degree with each other,” id. at ¶ 18; (8) the court’s

repeated references to the facts of the case as “unusual,” “bizarre,” and

“different,” “ignored the reality that sexual assault and rape occur among

people who have some sort of pre-existing relationship with each other every

day,” id. at ¶ 19; (9) the court’s statement that the Sentencing Commission

did not contemplate “the fact scenario” of the case was “inaccurate and

incorrect,” id. at ¶ 20; (10) the court emphasized Defendant’s “great working

history,” but the “attack happened while [] Defendant was at work [and it was

committed] against another coworker of his,” id. at ¶ 21; and (11) the

imposed sentence “fail[ed] to adequately protect the public,” id. at ¶ 22.

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responses to the other party’s post-sentence motion. See Defendant’s

Response to Commonwealth’s Post-Sentence Motion, 8/21/24, 1-3;

Commonwealth’s Response to Defendant’s Post-Sentence Motion, 8/23/24, 1-

10. After a hearing on August 29, 2024, the trial court deferred a ruling on

the post-sentence motions for the preparation of trial transcripts and the

possibility of the parties filing supplemental briefs. See N.T. Post-Sentence

Motions Hearing, 8/29/24, 22. After the Commonwealth filed a supplemental

memorandum of law, the court denied both parties’ motions on November 7,

2024. See Commonwealth’s Memorandum of Law, 9/27/24, 1-28; Order

(post-sentence motions denial), 11/7/24, 1.

Both parties timely filed notices of appeal. See Commonwealth’s Notice

of Appeal, 12/6/24, 1; Defendant’s Notice of Appeal, 12/6/24, 1. Both parties

and the trial court satisfied their obligations under Pennsylvania Rule of

Appellate Procedure 1925. See Rule 1925(b) Statement, 1/8/25, 1;

Defendant’s Petition for an Extension of Time to File Rule 1925(b) Statement,

1/14/25, 1-2; Order (granting Defendant’s extension petition), 1/22/25, 1;

Commonwealth’s Rule 1925(b) Statement, 1/29/25, 1-2; Defendant’s Rule

1925(b) Statement, 2/18/25, 1-3; Trial Court Opinion, 4/22/25, 1-62. On

February 24, 2025, the parties filed a written stipulation agreeing to correct

the trial jury panel list. See Parties’ Stipulation to Correct Jury Panel List,

2/24/25, 1-3. On October 31, 2025, this Court sua sponte consolidated the

instant appeals. See Superior Court Order (consolidation of appeals),

10/31/25, 1 (78-79 EDA 2025); Pa.R.A.P. 513.

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Appeal Number 79 EDA 2025

Defendant presents the following questions for our review:

I. Whether the trial court erred in denying [Defendant’s]

motion to strike for cause Panelist #37 since that

prospective juror could not be fair and impartial?

II. Whether the trial court erred in admitting portions of Exhibit

C14 (nurse’s “sexual assault packet”)[,] containing the

complainant’s narrative accusing [Defendant] of

misconduct, because that section of the report and related

testimony is hearsay and that is not within the medical

diagnosis or treatment exception, and no other hearsay

exceptions applied?

III. Whether the trial court erred when it permitted a police

officer and the complainant’s mother to testify about the

complainant’s out-of-court statements describing her

version of [the] events, as the statements are not excited

utterances, and no other exceptions to the rule against

hearsay applied?

Defendant’s Brief for Appellant, 5.

We will begin by addressing Defendant’s appeal, as a grant of relief on

any of his claims could necessitate a vacation of the judgement of sentence

and the ordering of a new trial that would render moot the Commonwealth’s

discretionary sentencing claim. See Commonwealth v. Ingber, 531 A.2d

1101, 1102 (Pa. 1987) (“a new trial must be awarded” if the refusal of a

defense challenge for cause to a venireperson was erroneous);

Commonwealth v. Peterkin, 513 A.2d 373, 376 n.6 (Pa. 1986) (“Errors of

admission raise independent issues and may for constitutional or other

reasons require a new trial[.]”).

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In his first issue, Defendant asserts that his convictions are “the product

of a flawed jury selection process” and the trial court erred by denying his

motion to strike prospective jury panelist #37 (“Panelist 37”) for cause. See

Defendant’s Brief for Appellant, 6, 19-24. Panelist 37 was never seated in the

jury panel which ultimately sat for the trial, but Appellant alleges that the

court’s improper rejection of his motion to strike that panelist for cause

constituted an abuse of discretion where it caused him to exercise a

peremptory challenge that could have been used on a different panelist where

he otherwise exhausted all of his peremptory challenges before the jury was

selected. See id. at 21-24.

We review the instant claim cognizant that

[a] criminal defendant’s right to an impartial jury is explicitly

guaranteed by Article I, section 9 of the Pennsylvania

Constitution, Pa. Const. Art. I, § 9. The jury selection process is

crucial to the preservation of that right. The relevant principles

governing the examination of veniremen to assess their

impartiality are set forth in [our Supreme] Court’s decision in

Commonwealth v. Drew, [] 459 A.2d 318 ([Pa.] 1983):

It must be remembered the purpose of the voir dire

examination is to provide an opportunity to assess the

qualifications of prospective jurors to serve. [See]

Commonwealth v. Johnson, [] 305 A.2d 5 ([Pa.]

1973); Commonwealth v. Lopinson, [] 234 A.2d

552 ([Pa.] 1967), vacated and remanded 392 U.S.

647 [], appeal after remand, [] 296 A.2d 524, cert.

denied, 411 U.S. 986 [] (1973); Commonwealth v.

McGrew, [] 100 A.2d 467 ([Pa.] 1953). It is

therefore appropriate to use such an examination to

disclose fixed opinions or to expose other reasons for

disqualification. [See] Johnson, supra;

Commonwealth v. Swanson, [] 248 A.2d 12 ([Pa.]

1968), cert. denied[,] 394 U.S. 949 [] (1969); []

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Lopinson, supra; [] McGrew, supra. Thus[,] the

inquiry must be directed at ascertaining whether the

venireperson is competent and capable of rendering a

fair, impartial[,] and unbiased verdict. [See]

Johnson, supra; [] Lopinson, supra; [] McGrew,

supra. The law also recognizes that prospective

jurors were not cultivated in hermetically sealed

environments free of all beliefs, conceptions[,] and

views. The question relevant to a determination of

qualification is whether any biases or prejudices can

be put aside upon the proper instruction of the court.

[See] Commonwealth v. England, [] 375 A.2d

1292 ([Pa.] 1977); [] Johnson, supra.

[Drew,] 459 A.2d at 320.

A challenge for cause to service by a prospective juror should be

sustained and that juror excused where that juror demonstrates

through his conduct and answers a likelihood of prejudice. [See]

Commonwealth v. Colson, [] 490 A.2d 822 ([Pa.] 1985). The

decision whether to disqualify a venireman is within the discretion

of the trial court and will not be disturbed on appeal absent a

palpable abuse of that discretion. [See] Colson, supra;

Commonwealth v. Bighum, [] 307 A.2d 255 ([Pa.] 1973);

Commonwealth v. ex rel. Fletcher v. Cavell, [] 149 A.2d 434

([Pa.] 1959); Commonwealth v. Pasco, [] 2 A.2d 736 ([Pa.]

1938); Commonwealth v. Gelfi, [] 128 A. 77 ([Pa.] 1925).

Ingber, 531 A.2d at 1102-03.

During the initial questions posed to the venire, Panelist 37 answered in

the affirmative that he would “believe the testimony of a police officer merely

because he or she is a police officer, more than any other witness.” N.T. Trial,

5/6/24 (Vol. 2), 15. He also answered in the affirmative that “the nature of

the charges themselves … would prevent [him] from being a fair and impartial

juror.” Id. at 17.

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The court later subjected Panelist 37 to individual voir dire examination

regarding his response about the nature of the charges affecting his ability to

be a fair and impartial juror. See N.T. Trial, 5/6/24 (Vol. 2), 81-84. Panelist

37 stated that he would “do [his] best based on the facts” but his concern was

that the charges would mean that the jury would be “calling somebody a liar,”

a process that he referred to as an “internal struggle.” Id. at 82. Upon further

questioning about the task of the jury in those respects, Panelist 37 indicated

that he thought that he could be “fair and impartial” in this case:

THE COURT: So[,] all[] we’re going to ask you to do really is listen

to the testimony of all the witnesses and make an evaluation and

I’m sure that in your life -- and you’re in sales, right?

[PANELIST 37]: Correct.

THE COURT: You have to deal with people all the time and you

have to evaluate them, kind of figure them out a little bit, and

that’s what we’re asking you to do when they’re on the stand, all

right. You’ve got to pick through the nonsense and kind of find

out where the facts are.

[PANELIST 37]: Understand.

THE COURT: Do you think you could be fair and impartial in this

case?

[PANELIST 37]: Then yes.

Id.

The court also questioned Panelist 37 about his ability to follow an

instruction that the jury could not take an adverse inference from a

defendant’s choice not to testify:

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THE COURT: You said in the beginning that you have [to] say that

someone is a liar, the judge will instruct you in a little bit that the

defendant does not have to testify and if he doesn’t testify would

you infer anything from that?

[PANELIST 37]: I, you know, that would be in the back of my

mind, yes. Especially…

THE COURT: One of the jury instructions, I had mentioned this out

there, is that you can’t infer the negative by a person not

testifying, constitutional rights, we all live by them, we all love to

have them. We’re all innocent unless proven, and that word

proven is on the Commonwealth not the defense, so they have to

pro[ve] the person guilty. You can’t say that I did something and

then expect me to explain what I didn’t do, it’s really hard to prove

a negative, so that’s why we have that rule. So, I would instruct

you as a juror that you cannot infer anything negative on a person

not testifying or presenting any evidence. If the Commonwealth

proved their case[,] so be it, if they didn’t prove their case[,] so

be it, we don’t -- that’s the way the chips fall.

[PROSECUTOR]: And are you okay following that instruction?

[PANELIST 37]: All right.

[PROSECUTOR]: Nothing further, thank you.

N.T. Trial, 5/6/24 (Vol. 2), 83-84. The defense made a motion to strike

Panelist 37 that the Commonwealth opposed. See id. at 84 (Defendant’s

counsel: “I’m going to make a motion but I, I mean I know where he was

going -- for the record I motion to strike.” THE COURT: “All right.”

PROSECUTOR: “And I would be opposed to it”). The motion to strike for cause

was rejected and Defendant’s counsel used a peremptory strike on Panelist

37. See Order (Correction of Jury Panel List), 2/25/25, 1.

Defendant alleges that the above-reproduced portions of the record

reflect that the trial court erred by rejecting his motion to strike for cause

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because Panelist 37 “was more likely to believe police testimony, wavered

about his ability to assess witness credibility, expressed concerns that the

nature of the charges would impact his fair evaluation of the case, and

suggested that he would improperly consider a defendant’s invocation of his

right to not testify.” Defendant’s Brief for Appellant, 19. Defendant argues

that Panelist 37 was unsuitable to serve as a juror and that he “never made

adequate assurances that he could be fair” and impartial in that role. Id. at

20-22. Defendant asserts that a “fundamental jury selection error” with

regard to this panelist improperly forced him to squander one of his exhausted

peremptory challenges. See id. at 23-24.

The trial court advises us that its denial of the motion to strike for cause

was proper:

The record in the case supports this court’s denial of [Defendant’s]

challenge for cause and demonstrated the denial was not

improper. The May 6, 2024 [n]otes of [t]estimony are clear [that

Panelist 37] indicated during voir dire [that] the nature of the

charges in the case might affect his ability to be fair and impartial.

He stated he would try to be fair and impartial. When questioned

by the court, and the attorney for the Commonwealth, [Panelist

37] did not equivocate in his answers to the court and clearly

stated [that] he could be fair and impartial in this case and he

would follow the court’s instructions.

[Defendant] raised a challenge for cause to [Panelist 37] and

moved to strike the juror. Based on the exchange, this court

concluded [that Panelist 37] could and would follow the court’s

instructions and evaluate the facts and evidence in the case, and

be a fair juror. This court’s ruling did not result in the seating of

a juror who should have been dismissed for cause. The fact this

case is of a sensitive nature did not render prospective juror[,

Panelist 37,] incompetent to serve, especially when he credibly

asserted he would weigh the evidence and the believability of the

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of the testimony. Additionally, even though [Defendant] had the

opportunity to question [Panelist 37] concerning his particular

biases, [Defendant] did not pose any questions to the prospective

juror. This court did not restrict the scope of the voir dire of

[Panelist 37] and[,] without more development concerning the

prospective juror’s potential biases[,] this court did not find any

reason to grant the challenge for cause. Admittedly, [Panelist 37]

stated it might be somewhat challenging but he admitted he would

do his best to be fair and impartial and follow the court’s

instructions and he definitely did not express a fixed or definite

opinion concerning [Defendant’s] guilt or any predisposition

concerning the case generally. [Panelist 37] was not in this court’s

view demonstrating he would be incompetent as a juror.

Trial Court Opinion, 4/22/25, 42-43 (record citations omitted).

To prove that the denial of the motion to strike Panelist 37 was an

abuse of discretion, Appellant primarily compares the instant matter to our

prior decisions in Commonwealth v. Penn, 132 A.3d 498 (Pa. Super. 2016),

and Commonwealth v. Johnson, 445 A.2d 509 (Pa. Super. 1982). See

Defendant’s Brief for Appellant, 20-22. In Penn, the prospective panelist

initially indicated that she, or someone close to her, worked in law

enforcement or the justice system, and that she would be more likely to

believe the testimony of a police officer or law enforcement officer. See Penn,

132 A.3d at 500. In individual voir dire, the prospective panelist identified

that she worked in a security officer position, had previously worked in police

departments, and that her boyfriend was a police officer. See id. When asked

if she could be fair and impartial, she responded, “I would think so, yes.” Id.

Despite that assertion, the prospective panelist admitted that it would be hard

for her to not believe police officers or law enforcement officers because of

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her experience and that she would be inclined to believe them. See id. at

501.

In Johnson, a prospective panelist in a robbery matter indicated that

his daughter had been the victim of a rape and robbery that possessed several

important similarities with the facts in the case at bar. See Johnson, 445

A.2d at 512. When asked if he could be fair as a juror, the prospective panelist

said that he thought it would be difficult because of the way he was reacting

emotionally to the facts presented as they related to something that had

happened to his daughter. Id. Although he eventually assured the court that

he could be fair, we observed that the assurance did not dispel the force of

his prior candid admission about his reactions to the nature of the case

presented:

[The prospective juror] vividly demonstrated during voir dire that

he would be likely not to be an impartial juror. He not only visibly

manifested emotional distress but specifically expressed

substantial doubts about his ability to be impartial at least five

times. Although he acknowledged that “logically” he could

separate the robbery and rape of his daughter from the robbery

of appellant’s victims, he added at once that “emotionally, I can

see that I don’t have full control.”

Id. at 514.

Our reversals of the denials of motions to strike the prospective

panelists in Penn and Johnson can easily be distinguished from the instant

matter. Unlike in Penn, the parties did not elicit information from Panelist 37

demonstrating that his ability to perform the duties of a juror was clouded by

prior experience in law enforcement or extensive close ties to people in law

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enforcement. Unlike in Johnson, the record did not reflect that any statement

of potential bias on the part of Panelist 37 was the result of a consequential

life experience involving a similar crime committed against a close family

member. Thus, any putative bias of Panelist 37 in favor of police witnesses

or about the nature of the crimes did not rest “on a firm bedrock” as did that

of the prospective jurors in Penn and Johnson. Penn, 132 A.3d at 505.

Moreover, unlike in Penn, Panelist 37 did not immediately equivocate on his

ability to serve as a juror after giving his assurance that he could be a fair and

impartial juror in the instant case.

With the record before us, we are unable to conclude that the denial of

Defendant’s motion to strike Panelist 37 constituted an abuse of discretion.

The trial court here was in the best position to assess the credibility of Panelist

37’s statement that he could be a fair and impartial juror, see N.T. Trial,

5/6/24 (Vol. 2), 82, and the record supports the trial court’s finding that there

was no equivocation on the part of Panelist 37 that he could be fair. See Trial

Court Opinion, 4/22/25, 42. Taking into consideration that, at the time of the

individual voir dire of Panelist 37, Defendant’s counsel made no efforts to

interject with questions aimed at the prospective panelist’s ability to serve as

a juror, we conclude that the trial court adequately investigated the juror’s

potential bias in its own questioning and reasonably concluded that there was

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an absence of grounds for striking the panelist for cause. 5 See

Commonwealth v. Weiss, 776 A.2d 958, 966 (Pa. 2001) (trial court may

properly refuse to excuse a juror for cause when the trial court believes that

the juror would be fair and impartial).

In his second issue, Defendant asserts that the trial court abused its

discretion by admitting portions of the “sexual assault packet” containing

“narrative” from D.B. to Nurse Belfiglio. See Defendant’s Brief for Appellant,

25-28. He asserts that no hearsay exception applied to permit the admission

of this narrative, the statements implicating him were “unrelated to medical

treatment and unnecessary for [D.B.’s] care,” and the admission of these

statements denied him a fair trial. Id. at 25. The statements at issue, based

on Defendant’s argument, appear to concern D.B. recounting the events of

the abuse and her identification of Defendant as the perpetrator of that abuse.

See id. at 25 (“The complainant in this case told a sexual assault nurse about

accusations against a coworker, and the prosecution offered that evidence to

prove its assertions.”).

____________________________________________

5 To the extent that Defendant implies that the trial court employed an

inadequate scope in its questioning of Panelist 37 in the individual voir dire,

see Defendant’s Brief for Appellant, 21 (“the panelist was inclined to trust law

enforcement over other witnesses, and neither the trial court nor the

prosecutor made any attempts to rehabilitate him on this issue”), Defendant

waived any claim to that effect when he raised no contemporaneous objection

at the time of voir dire. See Commonwealth v. Doe, 462 A.2d 762, 765

(Pa. Super. 1983) (Doe waived her issue concerning the adequacy of the scope

of voir dire when no specific objection was made at the time of the voir dire).

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The Commonwealth maintains that the statements at issue were

admissible pursuant to the hearsay exception under Pennsylvania Rule of

Evidence 803(4), which applies to statements for purposes of medical

diagnosis or treatment. See Commonwealth’s Brief for Appellee, 15-16.

Assuming arguendo that the narrative portions of the SANE packet were

improperly admitted, the Commonwealth argues that any error in those

respects was harmless because the information contained in the narrative was

cumulative of the victim’s own testimony and the text messages exchanged

between D.B. and Defendant. See id. at 17-19.

When the trial court overruled Defendant’s objection to the admission

of the packet, the court asked for a limitation on the potential use of the packet

as follows: “The document would be admitted -- [as] discussed. I’d ask that

it be limited to the relevant parts for purposes of the SANE nurse[’s]

performance of her duties.” N.T. Trial, 5/8/24, 10. The trial court advises us

that this limitation, in addition to the fact that the information in the packet

tracked D.B.’s testimony, meant that the admission of the packet was proper:

The statements were not offered for the truth of the matter

asserted; they were not obtained only for the purpose of trial;

they were obtained by Witness Belfiglio so she would know where

to obtain DNA evidence and look for injury. Additionally[,] they

are consistent with, cumulative to, and corroborative of [D.B.’s]

testimony.

Trial Court Opinion, 4/22/25, 51. Like the Commonwealth, the trial court

asserts that, in the event we conclude that the narrative portions of the packet

were improperly admitted, the admission merely constituted harmless error:

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Even if the Superior Court disagrees, and determines this court

did commit error, the error is harmless in view of the additional

corroborative testimony, including [Defendant’s] own statements

demonstrated in the te[x]t messages. … [Defendant’s] claim does

not merit relief because, even if the testimony was hearsay, any

error in the admission of the testimony was harmless. Here, as

noted above, prior to [the testimony of D.B.’s mother], the victim

testified without objection concerning the sexual assault. The

admission of Exhibit C14[,] to the extent it included any

testimonial hearsay regarding [Defendant’s] identity[, it] was

wholly cumulative of [D.B.’s] prior testimony. As a result, even if

this court erred in allowing the admission of Exhibit C14 regarding

[D.B.’s] report of the sexual assault and [her] identification of

[Defendant], the error was harmless.

Id. at 52.

As a preliminary matter, we must address whether the admission of the

narrative portions of the SANE packet constituted error. The standard of

review of a trial court’s admission of evidence is as follows:

The admission of evidence is within the sound discretion of the

trial court and will be reversed only upon a showing that the trial

court clearly abused its discretion. An abuse of discretion is not

merely an error in judgment, but is rather the overriding or

misapplication of law, or the exercise of judgment that is

manifestly unreasonable, or the result of bias, prejudice, ill-will[,]

or partiality, as shown by the evidence of record.

Commonwealth v. Ganjeh, 300 A.3d 1082, 1091 (Pa. Super. 2023)

(citations, internal quotation marks, and brackets omitted).

“All relevant evidence is admissible, except as otherwise provided by

law. Evidence that is not relevant is not admissible.” Pa.R.E. 402. “Evidence

is relevant if it logically tends to establish a material fact in the case or tends

to support a reasonable inference regarding a material fact.”

Commonwealth v. Gross, 241 A.3d 413, 418 (Pa. Super. 2020) (citation

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and internal quotation marks omitted). Hearsay is a statement that: “(1) the

declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the

statement.” Pa.R.E. 801(c). Pennsylvania’s Rules of Evidence provide that

“[h]earsay is not admissible except as provided by [our Rules of Evidence],

by other rules prescribed by the Pennsylvania Supreme Court, or by statute.”

Pa.R.E. 802.

One exception to the rule against hearsay, asserted by the

Commonwealth, applies to a:

(4) Statement Made for Medical Diagnosis or Treatment. A

statement that:

(A) is made for--and is reasonably pertinent to--

medical treatment or diagnosis in contemplation of

treatment; and

(B) describes medical history, past or present

symptoms, pain, or sensations, or the inception or

general character of the cause or external source

thereof, insofar as reasonably pertinent to treatment,

or diagnosis in contemplation of treatment.

Pa.R.E. 803(4); see also Commonwealth v. Smith, 681 A.2d 1288, 1291-

92 (Pa. 1996) (“[T]he declarant must make the statement for the purpose of

receiving medical treatment” and “the statement [must] be pertinent to

medical treatment.”) (footnote omitted).

In Smith, on which Defendant relies, see Defendant’s Brief for

Appellant, 26-27, our Supreme Court addressed whether testimony by a nurse

wherein she repeated a statement made to her by an injured child identifying

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the child’s alleged abuser was inadmissible hearsay or whether such testimony

was properly admitted under the medical treatment exception to the hearsay

rule. A majority of the Smith Court concluded that the testimony was hearsay

and the medical treatment exception did not apply to the identification of the

abuser where it was not “pertinent” to the injured child’s treatment. Smith,

681 A.2d at 1292 (“We fail to see how the identity of the physical abuser was

pertinent to the treatment of [the injured child’s] scalding burns. What

difference would it have made to the treatment of the burns whether a total

stranger inflicted the burns or a close family relative?”).

The Smith majority also rejected the assertion that the identity of an

abuser was “of significance for psychological and emotional treatment of the

victim” as it concluded that “[p]rotection from future abuse … does not

constitute medical treatment or diagnosis.” Id. at 1292. The majority

concluded that admission of “everything said by the patient in the context of

being questioned for the purposes of psychological and treatment and

diagnosis” would render the “pertinent to medical treatment” requirement of

the Rule 803(4) hearsay exception “meaningless as a standard for judicial

analysis.” Smith, 681 A.2d at 1292-93. From Smith, we can extrapolate

that the identification of D.B.’s assailant in the “sexual assault packet” would

not have been admissible under the medical treatment or diagnosis hearsay

exception. See Pa.R.E. 803, Comment (“Statements as to causation may be

admissible, but statements as to fault of the person inflicting harm have been

held to be inadmissible.”) (citing Smith); see also Commonwealth v.

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D.J.A., 800 A.2d 965, 977-78 (Pa. Super. 2002) (en banc) (declining to

distinguish Smith in a case involving sexual abuse of a child: “While sexual

abuse carries with it the danger of contracting a sexually transmitted disease,

a child’s statement identifying the perpetrator cannot obviate that danger, nor

can such a statement, standing alone, determine whether the child should be

tested and/or treated for a sexually transmitted disease.”).

We agree with Appellant that the victim’s identifications of him in the

“sexual assault packet” were inadmissible. To the extent that his claim

encompasses additional aspects of the narrative portions of the SANE packet,

his argument appears to be limited to the following single-sentence assertion:

“Moreover, the portions of the nurse’s testimony and sexual assault packet

(Exhibit C14), which merely regurgitated the complainant’s story, did not

describe pain, physical symptoms, or any other medical symptoms.”

Appellant’s Brief, 28 (citing N.T. Trial, 5/8/24 (Vol. 1), 13). This lone assertion

about the remaining portions of the packet is insufficient to demonstrate an

entitlement to relief on the basis of the admission of impermissible hearsay.

The page of trial notes of testimony referred to within Defendant’s single-

sentence assertion quotes a narrative section of the packet but, in addition to

referring to D.B.’s assailant as a coworker, it describes the extent of the

alleged abuse, referring to attempted sodomization, possible digital

penetration of D.B.’s vagina, and anal penetration with a possible ejaculation.

See N.T. Trial, 5/8/24 (Vol. 1), 13. Appellant’s single-sentence assertion

about this testimony asserts a lack of “pain, physical symptoms, or any other

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medical symptoms,” Appellant’s Brief, 28, but overlooks that the information

was pertinent to medical treatment and therefore would reasonably fit within

the Rule 803(4) hearsay exception.

While Nurse Belfiglio testified that, as a SANE examiner, her “main

purpose [wa]s to document any injuries that are found on the patient’s body

and to collect any sort of evidence,” see N.T. Trial, 5/8/24 (Vol. 1), 5, her

testimony demonstrated that her examination of D.B. was also part of a

medical treatment process. She explained, “I offer treatment options for the

victims and then I give my recommendations to [the] physician[,] and they

consult with the patient and the primary nurse taking care of the patient will

administer the treatment options.” Id. at 6. General descriptions of the scope

of the non-consensual contact for which D.B. experienced, as addressed in the

narrative section cited by Defendant, would be pertinent to medical treatment

because it would set the bounds for the nurse’s physical examination of D.B.

and thereby comply with the requirements for the Rule 803(4) exception

because, as the nurse testified, it would “guide[ her] in the exam.” N.T. Trial,

5/8/24 (Vol. 1), 18.

Accordingly, we are not persuaded that the narrative portions of the

SANE packet were entirely inadmissible, but we agree with Defendant that no

hearsay exception definitively applied to D.B.’s references to Defendant’s

identity in the narrative portions. At the same time, however, Defendant’s

name was not specifically identified when D.B.’s first-hand narrative from the

packet was read to the jury. The nurse simply referred to the “assailant” as

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“a coworker who goes by the name of quote and unquote,” N.T. Trial, 5/8/24

(Vol. 1), 18, however, the court granted the Commonwealth permission to

“publish” the exhibit to the jury. See id. at 8. While the court asked that the

admission of the packet would be “limited to the relevant parts for the

purposes of the SANE nurs[es’s] performance of her duties,” id. at 10, no

instructions were given to the jury as to the inclusion of references to

Defendant’s identity in the packet or whether they were only to consider the

packet for a limited purpose other than the truth of the matters asserted

herein. In that sense, the publishing of the packet to the jury constituted

error.

As the trial court and the Commonwealth allude to in their analysis for

this Court, an abuse of discretion with respect to the improper admission of

hearsay is subject to harmless error review. See Commonwealth v.

Copenhaver, 316 A.3d 1020, 1025-26 (Pa. Super. 2024) (finding trial court’s

error in admitting videotaped statements made by victim’s sister, which were

inadmissible under the tender years exception to hearsay, was harmless

error).

It is well established that an error is harmless only if we are

convinced beyond a reasonable doubt that there is no reasonable

possibility the error could have contributed to the verdict. The

Commonwealth bears the burden of establishing the harmlessness

of the error. This burden is satisfied when the Commonwealth is

able to show that: (1) the error did not prejudice the defendant

or the prejudice was [de minimis]; or (2) the erroneously admitted

evidence was merely cumulative of other untainted evidence

which was substantially similar to the erroneously admitted

evidence; or (3) the properly admitted and uncontradicted

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evidence of guilt was so overwhelming and the prejudicial [e]ffect

of the error so insignificant by comparison that the error could not

have contributed to the verdict.

Commonwealth v. Green, 76 A.3d 575, 582 (Pa. Super. 2013) (citation

omitted).

Here, we conclude that any admission of the narrative portions of the

SANE packet was harmless error because D.B. testified at trial and the

narrative portions of the packet were merely cumulative of D.B.’s substantially

similar and untainted testimony describing the sexual assault incident in

question and identifying Defendant as the person who engaged in the sexual

contact with her without her consent. Moreover, the information in the

narrative sections was not presented to the jury as though they were

confirmed or endorsed in any fashion by Nurse Belfiglio. The nurse made clear

that the information included in the narrative sections of the packet were “the

victim’s statements” that the nurse wrote out “in her words.” N.T. Trial,

5/8/24 (Vol. 1), 12. As the narrative sections were merely cumulative of

D.B.’s trial testimony, we find that Defendant is entitled to no relief based on

an erroneous admission concerning the SANE packet. See Commonwealth

v. Fluelling, 2025 WL 1076121, *3 (Pa. Super., filed Apr. 7, 2025)

(unpublished memorandum cited for persuasive value pursuant to Pa.R.A.P.

126(b)) (admission of hearsay statement from child victim identifying her

sexual abuser through the testimony of a hospital social worker who heard

the child’s disclosure “was wholly cumulative” of the victim’s testimony and

thereby “any error was harmless”), appeal denied, 345 A.3d 1198 (Pa.

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2025); Commonwealth v. Steele, 2020 WL 4920008, *4-5 (Pa. Super., filed

Aug. 21, 2020) (unpublished memorandum cited for persuasive value

pursuant to Pa.R.A.P. 126(b)) (same result with respect to a physician

assistant’s testimony about a child victim’s identification of a perpetrator of

sexual abuse during a medical examination where, inter alia, the victim’s

mother testified to the child victim’s separate identification of Steele as a

perpetrator and Steele did not object to that testimony and “the erroneously

admitted evidence was merely cumulative of other untainted evidence which

was substantially similar to the erroneously admitted evidence”).

In his third issue, Defendant asserts that the trial court erred when it

permitted D.B.’s mother and Police Officer Pascale to testify to hearsay

statements of D.B. pursuant to the excited utterance hearsay exception. See

Defendant’s Brief for Appellant, 29-32. He argues that D.B.’s statements to

her mother, two days after the sexual assault incident, and to the police officer

thereafter, lacked “the necessary level of spontaneity” to qualify as excited

utterances because D.B. had an “ample opportunity to reflect upon the

encounter.” Id. at 31. In the absence of an alternate applicable hearsay

exception, he maintains that the repeated statements of D.B. were

erroneously admitted and there was a reasonable possibility that the

admission of those statements, “separately and combined,” factored into the

verdict as they “improperly bolstered the complainant’s testimony.” See id.

at 32.

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The Commonwealth argues that the statements of D.B. repeated by

Officer Pascale did not qualify as hearsay as they were not being admitted “to

prove the truth of the matter asserted.” Commonwealth’s Brief for Appellee,

19-20. Instead, the Commonwealth alleges that the statements were offered

“to explain the course of conduct undertaken by an investigating police

officer.” Id. at 20. As to D.B.’s statements repeated by her mother, the

Commonwealth asserts that evidence also was “not offered for the truth of

the matter.” Id. at 21. It suggests that the statement was offered to

demonstrate what the mother “did as a result of hearing the information,” i.e.,

helping to bag potential evidence, going to the hospital with D.B., and

“meeting with the nurses and police.” Id. In any event, the Commonwealth

argues that, if hearsay was improperly admitted through D.B.’s mother and

Officer Pascale, it was harmless error because it “was merely cumulative of

untainted, properly admitted[,] and similar testimony provided by the victim”

and was otherwise “de minimis at best.” Id. at 22.

The instant evidentiary claim is reviewed under an abuse of discretion

standard and is subject to harmless error review. See Commonwealth v.

Jacoby, 170 A.3d 1065, 1090 (Pa. 2017) (“[a]ppellate courts review

evidentiary decisions for an abuse of discretion”); Commonwealth v.

Stallworth, 781 A.2d 110, 120 (Pa. 2001) (“we decline to determine whether

or not the victim’s statement was properly admitted as an excited utterance

since we hold that even if the court erred in admitting the statement, any such

error was harmless”). Though Defendant has chosen to jointly argue two

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different evidence admission claims in this issue, we will address them

separately, starting with the claim addressing Officer Pascale’s testimony.

The trial court advises us that D.B.’s statements repeated by Officer

Pascale were not hearsay because they were not offered for the truth of the

matter asserted therein and, if erroneously admitted, the statements were

harmless:

The record shows [that Defendant] made a hearsay objection to

the introduction of Officer Pascale’s testimony concerning the

statement [D.B.] made to him at the hospital. This court

overruled the objection and permitted Officer Pascale to continue

testifying. A close review of the record demonstrates [that D.B.]

“relayed that a sexual assault had occurred with a coworker at the

Walmart two nights prior during her overnight shift.” [D.B.] told

him she worked overnight. [Defendant] objected again. The

Commonwealth argued this already was overruled and requested

a sidebar conference. During the sidebar [conference], the

Commonwealth indicated “the foundation for this testimony

already was laid and this is not her recorded statement with

Detective Fynes but a statement made at the [emergency room]

with the responding officer and where she’s able to give at least

some detail about what happened and this would fall under the

excited utterance exception to the hearsay rule[.” Defendant]

responded this is not an exited utterance but is prompting by the

police. Although this court did not necessarily agree [that] the

statements are admissible under the “excited utterance” theory

argued by the Commonwealth, the court decided to permit the

testimony with limitations.

Officer Pascale testified [that D.B.] said [that] she took her break

with another employee, Ant, and went to the rear of the Walmart

and behind Forman Mills. When there, Ant made sexual advances

on her and tried to vaginally penetrate her. When talking about

it, [D.B.] became distraught and “shut down[,]” and [Officer

Pascale] arranged for a formal interview the next day.

The court permitted Officer Pas[c]ale to testify to [D.B.’s]

statements: the statements were not being offered for the truth

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of the matter asserted; they were offered to explain why Officer

Pascale went to the hospital and what happened when he arrived.

And[,] in fact, the record shows, [] at the time she was in the

hospital[, D.B.] did not know [Defendant’s] full name and could

not identify him by name, and [D.B.] was so distraught she could

not speak about the matter in any depth. Notwithstanding this

conclusion, this court also considered the Commonwealth[’s]

argument [that] the statements could be considered [] excited

utterance[s] under the exception to the hearsay rule: [D.B.] was

suffering from a trauma and telling what had happened to her and

in a stressful hospital situation, serving to continue her traumatic

experience. This court properly admitted the testimony and this

decision was not an error in judgment, and absolutely not a

manifestly unreasonable judgment, and this court properly

applied the law, and the record is void of an indicia [that] this

court’s decision was the result of partiality, prejudice, bias[,] or ill

will.

Assum[ing arguendo that the] Superior Court disagrees and finds

this court[] committed error, in view of all the corroborating

testimony in this case, the error is harmless. [Defendant’s] claim

does not merit relief because, even if the testimony was hearsay,

any error in the admission of the testimony was harmless because

the error did not prejudice the defendant or the prejudice was de

minimis, the erroneously admitted evidence was merely

cumulative of other untainted evidence which was substantially

similar to the erroneously admitted evidence, and the properly

admitted and uncontradicted evidence of guilt was so

overwhelming and the prejudicial effect of the error was so

insignificant by comparison that the error could not have

contributed to the verdict. The victim testified concerning the

sexual assault and she identified [Defendant]. Thus, even if the

trial court erred in allowing Officer Pascale to testify regarding the

identity of the perpetrator, any error was harmless.

Trial Court Opinion, 4/22/25, 46-49 (record citations omitted).

To the extent that the trial court advocates that D.B.’s out-of-court

statement could have been presented for a purpose other than the truth, to

explain the police officer’s course of investigation, we agree that would have

been permissible. See Commonwealth v. Fitzpatrick, 255 A.3d 452, 458

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(Pa. 2021) (if not offered for the truth of the matter asserted, an out-of-court

statement is not hearsay, and can be admitted to demonstrate the non-truth

purpose). If that had been the accepted limited purpose for presenting the

out-of-court statements of D.B. through the police officer, then the testimony

should have been accompanied by a limiting instruction to the jury. Id. at

479 (“In a jury trial, the evidence [of an out-of-court statement presented for

a non-truth purpose] should be admitted in conjunction with a limiting jury

instruction to ensure that the jury considers the evidence [for the limited

purpose,] and not for the truth of the words spoken.”).

Here, when the trial court denied Defendant’s objections to the officer’s

testimony about D.B.’s statements to him at the hospital, no limiting

instructions were offered to focus the juror’s attention to the limited purpose

for which the evidence could be used. See N.T. Trial, 5/7/24, 38, 41. In the

absence of a limiting instruction, the statements were admitted as substantive

evidence without limitation. To admit these statements as substantive

evidence an applicable hearsay exception was required. See

Commonwealth v. King, 959 A.2d 405, 412 (Pa. Super. 2008) (“since the

jury was not instructed with respect to the manner in which such evidence of

motive was to be regarded, the statement must be considered as substantive

evidence admitted for the truth of the matter asserted, which clearly rendered

it hearsay”).

The only hearsay exception argued by the Commonwealth to apply

before the trial court was the excited utterance exception. See N.T. Trial,

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5/7/24, 39-40. The Commonwealth argued that the exception applied

because D.B. was “visibly distraught” at the time of her interaction with the

officer at the hospital and, in the Commonwealth’s view, the statements would

still be excited utterances because they were relayed at a time when D.B. was

still experiencing trauma from the sexual assault incident: “If you go through

something traumatic, it can be more than just right away. It’s how long you

are under the strain of that trauma for.” Id.

The excited utterance exception applies to “[a] statement relating to a

startling event or condition, made while the declarant was under the stress of

excitement that it caused.” Pa.R.E. 803(2). With respect to the applicability

of this exception, the comment to Rule 803(2) provides:

There is no set time interval following a startling event or condition

after which an utterance relating to it will be ineligible for

exception to the hearsay rule as an excited utterance. In

Commonwealth v. Gore, 396 A.2d 1302, 1305 (Pa. Super.

1978), the court explained:

The declaration need not be strictly

contemporaneous with the existing cause, nor is

there a definite and fixed term limit … Rather,

each case must be judged on its own facts, and

a lapse of time of several hours has not negated

the characterization of a statement as an

“excited utterance.” … The crucial question,

regardless of time lapse is whether, at the time

the statement is made, the nervous excitement

continues to dominate while the reflective

processes remain in abeyance.

Pa.R.E. 803(2), Comment. “Additionally, in assessing a statement offered as

an excited utterance, the court must consider, among other things whether

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the statement was in narrative form, the elapsed time between the startling

event and the declaration, whether the declarant had an opportunity to speak

with others and whether, in fact, she did so.” Commonwealth v. Gray, 867

A.2d 560, 570 (Pa. Super. 2005) (internal quotation marks, brackets, and

citation omitted). “It is the spontaneity of … an excited utterance [that] is the

source of reliability and the touchstone of admissibility.” Id. at 571 (citation

omitted; brackets in original).

A police incident report, that was moved into the trial record, see N.T.

Trial, 5/7/24, 51, indicated that Officer Pascale responded to Taylor Hospital

at 4:56 p.m. on June 24, 2021. See Commonwealth Exhibit C-19, Police

Incident Report, 4. Assuming that D.B. spoke to the officer shortly after that

time, D.B.’s statement to Officer Pascale occurred about sixty hours after the

assault, which D.B. testified happened around 5:00 a.m. on June 22, 2024.

See N.T. Trial, 5/7/24, 73-74. Before D.B. spoke to Officer Pascale, she

finished out her work shift on the morning of the 22 nd, went home, had a

phone conversation with a “mentor” that she had been “working with at the

time,” and spoke with her mother “a couple days later,” before they “ended

up going to the hospital.” See id. at 79-81, 83. Officer Pascale testified that

D.B. “became distraught” after he had a conversation with her and her mother

during which D.B. “relayed[] that a sexual assault had occurred while she was

working at the Walmart.” Id. at 37-38. He also testified that D.B. “kind of

froze up” and “began to tear up” when he questioned her further. Id. at 38.

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The statement to the police officer, while not lengthy, constituted a

narrative:

She relayed that she works at the Walmart overnight from 10

[p.m.] to 7:00 [a.m.] I believe, around 5:00 [a.m., s]he took her

break with another employee [who] she knew by the nickname[,]

Ant. [T]hey went to the rear of the Walmart and then … behind

the Foreman Mills. She said that’s when Ant began to make sexual

advances on her to the point that he attempted to vaginally

penetrate her. And that’s when she became distraught and shut

down.

N.T. Trial, 5/7/24, 41.

A narrative of this nature could have been admissible as the product of

emotional trauma if it had been made closer in time to the incident in question.

See, e.g., Commonwealth v. Pettiford, 402 A.2d 532, 533 (Pa. Super.

1979) (victim statement properly admitted as excited utterance where “the

victim was subjected to the emotional trauma of a forcible rape and was in a

hysterical state of mind when, within fifteen to twenty minutes of the rape,

she recounted its details to the witnesses in question”). The passage of a

substantial amount of time in between the statement and incident in this case,

however, particularly where combined with the fact that D.B. was able to

speak to others and have time to reflect on the events in question before

making the statement, and that the statement was made in a separate

location from the incident and seemingly in response to police questioning

compel us to include that the statement to the police officer was not an excited

utterance for admissibility purposes. See Commonwealth v. Keys, 814 A.2d

1256, 1259 (Pa. Super. 2003) (terroristic threats victim’s statement to police

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did not qualify as excited utterance where, inter alia, thirty minutes elapsed

between the end of the startling event and the statement, the statement was

elicited eight blocks away from the scene of the event, and the utterance was

in response to a police officer’s query).

Moreover, the fact that the victim was able to continue on with her work

shift at her place of employment after the incident occurred suggested that,

at the time of the police statement, more than two days later, D.B. was not

making spontaneous reactions to a startling event that continued to render

her reflective thought processes inoperable such that the statement would be

admissible as an excited utterance. See Commonwealth v. Upshur, 764

A.2d 69, 75 (Pa. Super. 2000) (en banc) (“Admissibility pursuant to th[e

excited utterance] exception, requires, initially, that the declarant observe an

event sufficiently startling and so near in time as to render his reflective

thought process inoperable and, secondly, that the declaration constitute a

spontaneous reaction to the startling event.”) (citation omitted).

While we agree with Defendant that D.B.’s statement to the police officer

should not have been admitted under the excited utterance exception, we are

unable to conclude that Defendant was prejudiced by the admission of the

statement where it was merely cumulative of D.B.’s properly admitted,

untainted, and substantially similar testimony to the jury. The statement to

Officer Pascale identified a coworker, “Ant,” as having made a sexual advance

on D.B., which included an attempt to vaginally penetrate her, during a break

at her work at the time of the work break incident addressed in D.B.’s

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testimony. See N.T. Trial, 5/7/24, 41 (statement recounted by Officer

Pascale), compare with N.T. Trial, 5/7/24, 63-75 (D.B. testifying about work

break incident involving Defendant, whom she referred to as “Ant,” in which

she alleged that he, inter alia, “proceeded to insert his penis into [her]

vagina”). Given that Officer’s Pascale’s testimony as to D.B.’s statement to

him was cumulative of D.B.’s own testimony, we conclude that the admission

of the hearsay from the officer constituted harmless error. See

Commonwealth v. Wilson, 286 A.3d 1288, 1301 (Pa. Super. 2022) (error

in admitting entire recording of a forensic interview of a child rape victim was

harmless where the contents of the forensic interview were cumulative and

“substantially similar” to the child victim’s testimony).

With respect to Defendant’s claim about the admission of hearsay

statements from D.B. contained in the testimony of her mother, the trial court

advises as follows:

The record shows [that Defendant] made a hearsay objection to

[D.B.’s mother] testifying concerning the statements [D.B.] made

to her about the sexual assault. This court determined [that D.B.]

could continue testifying subject to cross examination about her

testimony. A review of the record demonstrates the only

statement [D.B.’s mother] made concerning the sexual assault

was “that a guy from her job had raped her” and the remainder of

her testimony involved what the next steps [D.B.] would be

taking; [D.B.’s mother] did not testify to any specific

identification. Additionally, the record shows [Defendant,] during

cross examination[,] did not ask any questions concerning [D.B.’s]

statements. Finally[,] the statements were not offered to prove

the truth of the matter asserted but to show [that D.B.’s]

testimony was consistent and the reason she decided to have an

examination, and the statements were not hearsay. This court in

reviewing the record determined [that Defendant’s] objections

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effectively steered the testimony of [D.B.’s mother] away from

[D.B.’s] statements.

[Moreover], even if the testimony was hearsay, any error in the

admission of the testimony was harmless. Here, as noted above,

prior to [D.B.’s mother’s] testimony, the victim testified without

objection concerning the sexual assault. Thus[, D.B.’s mother’s]

testimony regarding [Defendant’s] identity was wholly cumulative

of both witnesses’ prior testimony. Thus[,] even if the trial court

erred in allowing [D.B.’s mother] to testify regarding her

daughter[’s] report of the sexual assault and identification of

[Defendant], if any, the error was harmless.

Trial Court Opinion, 4/22/25, 49-50 (record and case law citations omitted).

D.B.’s mother’s testimony made clear that D.B. woke her up to tell her

about the assault and that she and her daughter then went to the hospital.

See N.T. Trial, 5/7/24, 153 (“she came to my room and she woke me up to

tell me what happened to her”), 159 (“We cried and the first thing we did was

go to the hospital.”). From this testimony we can infer that the D.B.’s

disclosure statements to her mother occurred on the morning or day of June

24, 2021, more than two days after the incident on June 22, 2021. Her mother

described D.B. as “crying” and “distraught” at the time of the disclosures but

otherwise described her as “really, really quiet” in the days leading up to the

disclosure. See id. at 153, 158-59.

From the circumstances we glean from the mother’s testimony about

the disclosures from D.B., we find that many of the factors that prevented us

from applying the excited utterance hearsay exception to the statements

made to Officer Pascale apply equally to the statements to the mother. Here,

a span of two days or more between the incident and the disclosure to the

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mother made it unlikely that D.B. was undergoing a persistent state of

excitement for that entire time period such that D.B.’s thought processes were

inoperable at the time she spoke to her mother. While we have provided that

the excited utterance exception may apply to disclosure of child victims to a

mother made after the passage of time when the disclosures were made at

the first opportunity to do so, see Commonwealth v. Sherwood, 982 A.2d

483, 496 (Pa. 2009), in this instance, D.B. was an adult at the time of the

relevant events, and the mother’s testimony did not assert that D.B. made

the disclosure to her mother at the first opportunity to do so. Given the two-

day delay in the disclosure to the mother, the changed setting from the work

site to her home, and D.B.’s change from being quiet in the days leading to

the disclosure to being distraught at the time of the disclosure – thus evincing

adequate time for reflection by D.B. – we must agree with Defendant that the

trial court erred by rejecting his objection to the admission of the mother’s

testimony based on the excited utterance exception. See N.T. Trial, 5/7/24,

154-58.

As with Defendant’s claims about the presentation of hearsay through

Officer Pascale and the SANE packet, we agree with the trial court that the

admission of hearsay through D.B.’s mother’s testimony amounted to nothing

more than harmless error where the substance of the testimony was

cumulative of D.B.’s own testimony. The mother’s testimony repeated a

statement from D.B. that “a guy on her job had raped her.” N.T. Trial, 5/7/24,

154. D.B.’s testimony maintained that, with respect to the incident at issue,

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a co-worker had tried to insert his penis in her vagina and penetrated her

anally after she told him that she did not consent. See N.T. 5/7/24, 74-77

(“I told him I don’t do that, that’s not my thing. … I wasn’t okay with what he

was doing. … I told him multiple times that I wasn’t comfortable with anything.

… I wasn’t comfortable with anything he did[,] and I told him that it wasn’t

my thing multiple times.”). Rape, by its statutory definition, refers to a person

engaging in sexual intercourse by, inter alia, forcible compulsion, see 18

Pa.C.S. § 3121(a)(1), and, by statute, we define “sexual intercourse” as

including, “[i]n addition to its ordinary meaning[,] intercourse per os or per

anus, with penetration however slight.” 18 Pa.C.S. § 3101. Even though

Appellant never achieved penetration of D.B.’s vagina for purposes of the rape

charge, the “rape” allegation repeated by D.B.’s mother applied equally to the

anal penetration addressed in D.B.’s testimony and provided the factual basis

for the IDSI charge. Because the hearsay statement repeated by D.B.’s

mother was cumulative of D.B.’s own untainted testimony, we agree with the

trial court that the admission of the mother’s testimony about her daughter’s

statement was simply harmless error. See Wilson, supra, 286 A.3d at 1301.

We therefore find that Defendant’s claims identify three errors by the

trial court but, with respect to each, the errors were harmless because the

improperly admitted evidence merely repeated the exact substance of D.B.’s

substantially similar testimony which the jury heard and evaluated in their

role as the trial fact finder.

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To the extent that Defendant summarily asserts that the cumulative

effect of these errors was not harmless, see Defendant’s Brief for Appellant,

32 (“Each of the hearsay rules, separately and combined, improperly bolstered

the complainant’s testimony. … Even if ‘wholly cumulative’ as the trial court

suggests, that only amplifies the prejudice and further illustrates why a new

trial is required.”) (citation omitted), we find that this baldly-stated argument

is unavailing. Assuming arguendo that Defendant had properly developed a

cumulative prejudice claim beyond the two-sentence assertion presented, he

would not have been able to show that the erroneously repeated statements

of D.B. prejudiced him. This case did not simply come down to an assessment

of D.B.’s credibility such that the efforts to repeat her account would have

reasonably affected the outcome of the trial. Instead, D.B.’s account was

bolstered by the text messages in which, following the assault incident,

Defendant apologized to D.B., asserted, “That was my fault,” referenced that

he did not want to “make” her do something, and expressed that he felt that

he “may have missed [his] opportunity” after addressing his desire to have

sex with D.B. N.T. Trial, 5/7/24, 125-26; see also Commonwealth Trial

Exhibit C-13 (text messages). The reasonable inferences to be gleaned from

the content and timing of Defendant’s text messages were that Defendant did

something he needed to apologize for around the time of the work break

during which the assault occurred, that the improper thing he needed to

apologize for involved him trying to make D.B. do something that she did not

want to do, and that the apology involved something sexual in nature. These

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text messages offered substantial corroboration for D.B.’s account and

bolstered her credibility independent of the summary restatements of her

accounts to the nurse, her mother, and the responding police officer.

Accordingly, we conclude that a cumulative prejudice argument would fail for

lack of merit.

Appeal Number 78 EDA 2025

In its appeal, the Commonwealth presents the following question for our

review:

Whether the trial [court] abused its discretion when sentencing

[D]efendant where the court grossly deviated downward from the

mitigated range of the [S]entencing [G]uidelines, failed to account

for sentencing factors in 42 Pa.C.S. §[ ]9721, improperly

considered the lifetime sexual offender registration requirement

as a factor necessitating a more lenient sentence, improperly

considered probation – which for [D]efendant’s conviction is

mandatory – as a factor necessitating a more lenient sentence,

improperly viewed [D]efendant’s prior relationship with his sexual

assault victim as a mitigating factor, and where it considered as a

factor that [D]efendant did not understand the victim’s lack of

consent, despite the jury’s determination that [D]efendant

knowingly, or at least recklessly, disregarded the victim’s non-

consent?

Commonwealth’s Brief for Appellant, 3.

The Commonwealth presents a challenge to the discretionary aspects of

the sentence imposed, alleging that the sentencing court “grossly deviated

downward” from the mitigated range recommended by the Sentencing

Guidelines and imposed an unreasonable sentence due to multiple improper

mitigation factors. See Commonwealth’s Brief for Appellant, 12-22. The

Commonwealth argues that it was improper for the court to consider as

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mitigating that: (1) Defendant had “a lack of criminal history” where that was

already factored into the Sentencing Guidelines’ recommendation, see id. at

16; (2) Defendant had an “excellent work history” where his crimes in this

case were committed against a co-worker, see id. at 16-17; (3) a lesser

imprisonment term would be justified based on the requirement for imposing

a statutorily-mandated minimum term of probation in this case, see id. at 17-

18; (4) Defendant previously knew D.B. and that he had some sort of prior

relationship with her, see id. at 18-19; (5) contrary to the jury’s verdict,

Defendant did not realize or understand D.B.’s lack of consent, see id. at 19-

20, 22; and (6) “a lifetime Sex[ual] Offender Registration [requirement] was

essentially punishment enough and justified the excessively lenient sentence,”

see id. at 21. The Commonwealth asserts that the imposed sentence was

“unjustifiable, unreasonable[,] and tantamount to an abuse of discretion.” Id.

at 22.

“It is well-settled that, with regard to the discretionary aspects of

sentencing, there is no automatic right to appeal.” Commonwealth v.

Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010). 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,

[see] 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, [see] 42 Pa.C.S.[] § 9781(b).

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

(citation omitted).

Pennsylvania Rule of Criminal Procedure 721 governs a

Commonwealth’s challenge to a defendant’s sentence, in pertinent part, as

follows:

(A) Commonwealth Challenges to Sentence

(1) The Commonwealth may challenge a sentence by filing a

motion to modify sentence, by filing an appeal on a preserved

issue, or by filing a motion to modify sentence followed by an

appeal.

(2) Sentencing issues raised by the Commonwealth at the

sentencing proceeding shall be deemed preserved for appeal

whether or not the Commonwealth elects to file a motion to

modify sentence on those issues.

Pa.R.Crim.P. 721(A).

The Commonwealth timely filed a notice of appeal within thirty days of

the trial court’s order dismissing both parties’ post-sentence motions. See

Order (post-sentence motions denial), 11/7/24, 1; Commonwealth’s Notice of

Appeal, 12/6/24, 1; see also Pa.R.Crim.P. 721(B)(2)(i) (setting a thirty-day

deadline for a Commonwealth notice of appeal following an order disposing of

post-sentence motions filed by the Commonwealth and the defendant). It

also preserved its arguments for reconsideration of sentence in its post-

sentence motion, its memorandum of law in support of its post-sentence

motion, and its arguments before the sentencing court. See Commonwealth’s

Post-Sentence Motion, 8/15/24, ¶¶ 7-22; Commonwealth’s Memorandum of

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Law, 9/27/24, 16-28; N.T. Post-Sentence Motion Hearing, 8/29/24, 9. The

Commonwealth also included a separate Rule 2119(f) statement in its brief.

See Commonwealth’s Brief for Appellant, 10-11. Our review now turns to the

Rule 2119(f) statement to determine whether the Commonwealth raised a

substantial question.

“This Court has found a substantial question exists 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.” See Commonwealth v. Garcia-Rivera, 983 A.2d 777, 779-80

(Pa. Super. 2009) (citation and internal quotation marks omitted). “The

determination of what constitutes a substantial question must be evaluated

on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d 323, 330

(Pa. Super. 2013) (citation omitted). In its Rule 2119(f) statement, the

Commonwealth asserts both that the court imposed an unreasonable

sentence, reflecting a downward departure from the recommendations of our

Sentencing Guidelines that was “unsupported by the circumstances,” and did

so by relying “upon impermissible sentencing factors.” Commonwealth’s Brief

for Appellant, 11. We conclude that the Commonwealth raises a substantial

question permitting our review. See Commonwealth v. Baker, 311 A.3d

12, 18 (Pa. Super. 2024) (Commonwealth raised substantial question by

arguing that sentencing court abused its discretion “by imposing a sentence

below the mitigated range of the sentencing guidelines resulting in an

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unreasonably lenient sentence”); Commonwealth v. Childs, 664 A.2d 994,

996 (Pa. Super. 1995) (Commonwealth presented substantial question when

it contended sentence imposed was “excessively lenient and unreasonably

deviated from applicable guideline range”). Accordingly, we grant the

Commonwealth allowance of appeal and will review the discretionary aspects

of Defendant’s sentence.

Our standard of review of a challenge to the discretionary aspects of a

sentence is well-settled:

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

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

arrived at a manifestly unreasonable decision.

Baker, 311 A.3d at 19 (citation omitted). Further, we have noted:

In reviewing a record to determine if the sentencing court abused

its discretion, the Sentencing Code instructs this Court to consider

the nature and circumstances of the crime; the history and

characteristics of the defendant; the sentencing court’s findings

as well as the court’s opportunity to observe the defendant,

including through presentence investigation; and the sentencing

guidelines. See 42 Pa.C.S.[] § 9781(d).

The Sentencing Code also instructs sentencing courts to consider

“the protection of the public, the gravity of the offense as it relates

to the impact on the life of the victim and on the community, and

the rehabilitative needs of the defendant.” 42 Pa.C.S.[] §

9721(b). The balancing of these Section 9721(b) sentencing

factors is within the sole province of the sentencing court. See

Commonwealth v. Lekka, 210 A.3d 343, 353 (Pa. Super. 2019).

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The sentencing court must also consider the sentencing guidelines

when sentencing a defendant. See 42 Pa.C.S.[] 9721(b).

However, the sentencing guidelines are purely advisory in nature

– they are not mandatory. See Commonwealth v. Yuhasz, []

923 A.2d 1111, 1118 ([Pa.] 2007). A court may therefore use its

discretion and sentence defendants outside the guidelines, as long

as the sentence does not exceed the maximum sentence allowed

by statute. See id. at 1118-1119. When a court deviates from

the sentencing guidelines, it must state the reasons for doing so

on the record. See Commonwealth v. McLaine, 150 A.3d 70,

76 (Pa. Super. 2016). This Court may vacate a sentence if it finds

the “sentencing court sentenced outside the sentencing guidelines

and the sentence is unreasonable.” 42 Pa.C.S.[] § 9781(c)(3).

Further, the weight accorded to the mitigating factors or

aggravating factors presented to the sentencing court is within the

court’s exclusive domain. See Commonwealth v. Chilquist, []

548 A.2d 272, 274 ([Pa. Super.] 1988). This Court has stated

that when a court possesses a [presentence investigation report

(“PSI”)], it is presumed the court “was aware of and weighed all

relevant information contained [in the report] along with any

mitigating sentencing factors.” Commonwealth v. Marts, 889

A.2d 608, 615 (Pa. Super. 2005) (citation omitted).

Baker, 311 A.3d at 19.

As a preliminary matter, we note that the Commonwealth is correct that

the sentencing court imposed a sentencing scheme that constituted a

substantial downward deviation from the Sentencing Guidelines’

recommendations. The court imposed concurrent terms of one to two years’

imprisonment and five years’ probation for IDSI and sexual assault where the

guidelines’ recommended minimum imprisonment terms for those convictions

were 48 to 66 months’ imprisonment, plus or minus twelve months

imprisonment for aggravating or mitigating circumstances, for IDSI, and 36

to 54 months’ imprisonment, plus or minus twelve months of imprisonment

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for aggravating or mitigating circumstances, for sexual assault. See supra

note 2.

Prior to the imposition of the sentence, the Commonwealth informed the

trial court of the applicable guideline recommendation for the lead offense,

see N.T. Sentencing Hearing, 8/8/24, 19, and the court acknowledged that it

had reviewed, inter alia, the parties’ sentencing memoranda and a PSI. See

id. at 28. The court prefaced its imposition of sentence with the following

remarks, reflecting that it was designating a mitigating term that would “go

outside the sentencing guidelines,” as follows:

THE COURT: … I think it is important to note that during the

pendency of this case back in 2021 to today, there’s been no

additional criminal involvement or history. It’s important to note

that he’s never had any criminal involvement, correct?

[DEFENSE COUNSEL]: That’s correct.

THE COURT: I also consider the testimony of the victim[,] and I

found her to be compelling, honest, and truthful, and I don’t think

she embellished at all. She didn’t embellish. I thought that she

was trying to be as sincere as possible. That being the case, I

think she indicated that they had -- it’s an unusual case of this

nature because they had a relationship and she was, I guess a

way of paraphrasing it. She was interested in, in exploring a

relationship, although she was somewhat conflicted about the

relationship. I think that was kind of the way to put it. She was

conflicted about a relationship with him, given that she had a

relationship with another person. And I think that’s what she

testified to. I think that was a cross examination. You actually

asked her who the person was, the person’s name. She was

certainly conflicted about that. It’s obvious that they were taking

breaks together, smoking marijuana together on their breaks,

having some forms of contact, kissing, making out, however you

want to phrase it, touching each other. But she also made it clear

that she drew the line at a certain point that that was the line.

She wasn’t opposed to satisfying him in her testimony, but she

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was opposed to going over a certain line that she had drawn. She

made that pretty clear.

That being said, I’m not sure [Defendant] understood that line. I

mean, she’s willing to satisfy him, but not let him satisfy her, I

guess is a way of looking at it. And she wouldn’t have been into

that as her words. She wasn’t into that, I think is the term she

used. So[,] it creates [an] unusual and difficult case for

sentencing[ i]n my opinion. I don’t think the guidelines anticipate

this nature of the case, this nature of an IDSI, I don’t think they

anticipate, the sentencing commission doesn’t look at all the facts.

So[,] that’s why they give courts discretion. I don’t think they’re

totally aware or they recognize that they’re not aware of every

possible consequence or every possible scenario. And I think they

have to give the Court’s discretion so they can adjust the

sentencing for the unusual, the bizarre, the difficult, the less than

normal case.

I think in [Defendant’s] favor is the fact that he has a great

working history. He’s always seemed to have had a job as far as

I could tell, right? I mean, [he’s] never not worked. He has a

great relationship with his family, his sister[s], his mother, et

cetera. But there’s no doubt that the jury found that he crossed

the line as we know it to be that the victim made the jury

understand that she did have very distinct and clear lines as to

where she wanted that relationship to go. And although they were

friends and if you saw the video, it didn’t look like she was

particularly upset after the event as they were walking back into

the Walmart. But that’s not the indicator, that’s not controlling,

in my mind, that’s not the jury’s decision is what’s controlling in

my mind.

All those things being said, I think it’s a deserving, this case is

deserving of mitigation. I can't go to the level of mitigation that

the Defense would like me to. I can go outside of the sentencing

guidelines. I will go outside of the sentencing guidelines for this

case. I believe that this is a case where certain considerations are

necessary and warranted.

Id. at 29-32 (section breaks added).

At the hearing on the post-sentence motions, the court noted additional

factors for mitigation. The court suggested that the mandatory SORNA

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registration and reporting requirements were a mitigating factor: “You don’t

think lifetime registration should be considered in that sentence? … A lifetime

registration. He gets the sentence plus lifetime registration as a sex offender.”

See N.T. Post-Sentence Motions Hearing, 8/29/24, 5; see also id. at 10 (“And

he has to be followed for the rest of his life he has to be followed by someone

because he is a lifetime registrant”). On top of the mandatory sex offender

registration and reporting requirements, the court suggested that the

statutorily-mandated minimum requirement of at least three years’ probation

was also another consideration for mitigation. See id. at 8 (“I think … a state

sentence with a long probationary tail and lifetime registration is a serious

sentence.”); id. at 9 (“the guidelines do not anticipate a lifetime registration

or five years of probation on top of that”).

Upon review of the Commonwealth’s claim that improper sentencing

factors were relied upon, we find that some of its arguments are not supported

by the record or supporting law. While the Commonwealth alleges that the

sentencing court improperly counted Defendant’s prior record score of zero

and a lack of a prior criminal record as a mitigating factor, see

Commonwealth’s Brief for Appellant, 16, the notes of testimony from

sentencing reveal that the trial court instead considered as a mitigating factor

Defendant’s lack of “additional criminal involvement or history” since “the

pendency of this case.” N.T. Sentencing Hearing, 8/8/24, 29. By the terms

of the applicable version of the Sentencing Guidelines, the prior record score

would have only accounted for prior convictions for which a sentence had been

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already imposed. See 204 Pa. Code § 303.5(c) (7th ed., amend. 6). The

guidelines thus would not have factored in new criminal cases for which

sentences had not been imposed or criminal cases remaining pending at the

time of sentencing. In these circumstances, we find that the court properly

considered the fact that Defendant remained crime-free for the entire four-

year duration of the pendency of his criminal proceedings in the instant case,

independent of the fact that Defendant had a prior record score of zero.

Although this is a subtle distinction, we find that the court’s remarks did not

improperly double-count Defendant’s prior record.

Additionally, we are not persuaded that the Commonwealth’s argument

that the court’s reflection on Appellant’s “excellent work history”

demonstrated consideration of an improper sentencing factor. See

Commonwealth’s Brief for Appellant, 16-17. While, on its face, it would appear

to be awkward to consider a defendant’s work history as a mitigating

sentencing factor in a case in which a co-worker was Defendant’s victim of

sexual offenses, the precise facts of the instant case did not conflict with the

sentencing court considering in toto Defendant’s work history preceding and

following the commission of his crimes. While this Court may not place the

same weight on the factor as the sentencing court did, the Commonwealth

points us to no law suggesting that work history would be an impermissible

mitigation factor in a case involving crimes committed against a co-worker,

and we cannot conclude that the circumstances of the instant case render per

se Defendant’s lifelong work history immaterial for mitigation purposes.

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We agree with the Commonwealth, however, that the court’s

consideration of statutorily-mandated sex offender registration and reporting

requirements and a statutory-mandated minimum amount of consecutive

probation were not proper factors for mitigation. See Commonwealth’s Brief

for Appellant, 17-18, 21. With respect to the registration and reporting

requirements, we have previously held that “[n]otice to the public of [a

defendant’s] sexually violent predator designation does not diminish the

court’s discretion to conclude that significant incarceration is required to

accomplish the legitimate objectives of the sentencing process.” See

Commonwealth v. Lilley, 978 A.2d 995, 999 (Pa. Super. 2009).

Accordingly, we held that a sentencing court did not abuse its discretion in

concluding that a defendant’s lifetime registration requirement was not a

mitigating circumstance for sentencing purposes. See id. Consistent with

Lilley, we conclude that the registration and reporting requirements are not

an offsetting mitigating consideration for imposing a lesser term of

imprisonment.6

We also agree with the Commonwealth that being subject to at least

three years of probation under 42 Pa.C.S. § 9718.5 is not a proper factor for

mitigation. By the terms of Section 9718.5, a sentencing court may impose

____________________________________________

6 We note that the holding in Lilley is also consistent with our Supreme Court’s

recent holding that the notification and registration requirements under

Section H of SORNA are not punitive in nature. See Commonwealth v.

Torsilieri, 316 A.3d 77, 109-10 (Pa. 2024).

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the minimum term of probation required by that statute “in addition to the

maximum sentence permitted for the offense for which the defendant was

convicted.” 42 Pa.C.S. § 9718.5(b). Moreover, the statute states that

“[n]othing under this section shall limit the court’s authority to direct

supervision by the Department of Corrections by special order as provided

under 61 Pa.C.S. § 6217(a) (relating to probation services).” However, here,

the court imposed a longer term of consecutive probation than required by

the statute. That the sentencing court imposed a longer term of probation

than required is a proper consideration for the court in determining the length

of an imprisonment term. We find that under these precise circumstances,

the court did not improperly consider the exercise of its discretion to increase

the consecutive probation term as a factor weighing toward mitigating the

imprisonment term.

The Commonwealth also argues that the trial court considered, as

mitigating factors, that Defendant and D.B. had a “prior relationship” and that

the court perceived a misunderstanding on Defendant’s part concerning D.B.’s

lack of consent. See Commonwealth’s Brief for Appellant, 18-20; see also

Trial Court Opinion, 4/22/25, 39 (“This court did not err or abuse [its]

discretion by … improperly viewing defendant’s prior relationship with his

sexual assault victim as a mitigating factor, or … nullifying the jury’s factual

finding where it considered as a factor that defendant did not understand [the]

victim’s lack of consent”). As to the former factor, the Commonwealth alleges

that “[i]t is improper, antiquated, and inappropriate to view acquaintance rape

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as somehow less deserving of punishment than a stranger rape.”

Commonwealth’s Brief for Appellant, 18. It also adds that, “[t]o rationalize

that defendant is somehow more deserving of a lenient sentence because he

chose to rape and assault someone who had trusted and befriended him,

versus a total stranger, is indefensible.” Id. at 19.

While we are sympathetic to the Commonwealth’s argument that no

version of rape should be minimized from a sentencing perspective, the

Commonwealth fails to point us to any supporting law suggesting that it was

an abuse of discretion for the sentencing court to consider the established

facts of an offense in considering whether to mitigate or aggravate a term of

imprisonment. Unlike the Commonwealth, we do not believe that the

sentencing court intended to make a blanket determination that acquaintance

sexual assault was categorically less offensive than a sexual assault

committed by a stranger. Rather, because of the existence of a prior

relationship between Defendant and his victim, there were necessarily more

factors to consider, such as the record of Defendant’s remorse established in

the text messages entered into the record.

We are mindful that “[s]entencing 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.” Commonwealth v. Rodda,

723 A.2d 212, 214 (Pa. Super. 1999) (en banc) (citation omitted). “In this

context, an abuse of discretion is not shown merely by an error in judgment.”

Id. A sentencing court must consider the particular circumstances of the

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offense, as well as the character of the defendant in crafting its sentence. See

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) We will

not reweigh “the significance placed on each factor by the sentencing judge.”

Commonwealth v. Williams, 69 A.3d 735, 742 (Pa. Super. 2013) (citation

omitted). When an offense is carried out in a manner which makes it more

egregious than what is considered “typical” for the offense, the nature of the

offense may be treated as a proper aggravating factor. See Commonwealth

v. Hanson, 856 A.2d 1254, 1259-60 (Pa. Super. 2004) (affirming aggravated

range sentence for terroristic threats where Hanson’s conviction “was more

reprehensible than a 'typical’ instance of terroristic threats”). Similarly, if an

offense is carried out in a manner that makes it less egregious than the typical

offense in the view of the sentencing court, mitigating the sentence is within

the court’s discretion.

In the last remaining subpart of this claim, the Commonwealth argues

that the sentencing court’s comprehension that Defendant made a mistake of

fact as to the victim’s consent was “completely contrary to the findings of fact

made by the jury.” Commonwealth’s Brief for Appellant, 19. We agree with

the Commonwealth that this demonstrates that the sentencing court

considered an improper mitigating factor. Pennsylvania law does not

recognize mistake of fact as to consent as a defense to rape and IDSI. See

Commonwealth v. Williams, 439 A.2d 765, 769 (Pa. Super. 1982) (“If the

element of the defendant’s belief as to the victim’s state of mind is to be

established as a defense to the crime of rape then it should be done by our

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legislature which has the power to define crimes and offenses. We refuse to

create such a defense.”); see also Commonwealth v. Fischer, 721 A.2d

1111, 1118 (Pa. Super. 1998) (“It is clear … that the Williams court’s basis

for denying the jury instruction was its conclusion that the law did not require

it and, further, that the judiciary had no authority to grant it”). Where the

jury found Defendant guilty of indecent assault by lack of consent, the

sentencing court’s statement that Defendant misunderstood the lack of

consent improperly invalidates the jury’s verdict.

We conclude that the sentencing court imposed a sentence that deviated

downward from the Sentencing Guidelines’ recommendations and did so

based on at least two improper factors for mitigation. Outside a limited,

narrow category of cases in which a trial court impermissibly penalizes a

defendant for exercising constitutional rights, however, the consideration of

impermissible sentencing factors does not mandate vacatur by itself, but

requires an additional finding that the imposed sentence was unreasonable for

purposes of 42 Pa.C.S. § 9781(c)(3). See Commonwealth v. Smith, 673

A.2d 893, 896 (Pa. 1996); see also Commonwealth v. Sheller, 961 A.2d

187, 192 (Pa. Super. 2008) (“Even if a sentencing court relies on a factor that

should not have been considered, there is no abuse of discretion when the

sentencing court has significant other support for its departure from the

sentencing guidelines”).

In deciding whether a sentencing court imposed an unreasonable

sentence, we are guided by the considerations listed in 42 Pa.C.S. § 9781(d)

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– that is, the nature and circumstances of the offense and the history and

characteristics of the defendant; the opportunity of the sentencing court to

observe the defendant, including any presentence investigation; the findings

upon which the sentence was based; and the recommendations of the

Sentencing Guidelines – and we review whether the trial court properly

considered the sentencing factors outlined in 42 Pa.C.S. § 9721(b) – the

protection of the public, the gravity of the offense with respect to the victim

and the community, and the rehabilitative needs of the defendant. See

Commonwealth v. Walls, 926 A.2d 957, 964 (Pa. 2007); Commonwealth

v. Valez, 273 A.3d 6, 12 (Pa. Super. 2022). “[T]he weight accorded to the

mitigating factors or aggravating factors presented to the sentencing court is

within the court’s exclusive domain.” Baker, 311 A.3d at 19. Where, as here,

the sentencing court had a PSI, “it is presumed the court was aware of and

weighed all relevant information contained [in the report] along with any

mitigating sentencing factors.” Id. (internal quotation marks and citation

omitted).

“While the Sentencing Code does not define unreasonableness, our

Supreme Court has explained that the concept commonly connotes a decision

that is irrational or not guided by sound judgment.” Commonwealth v.

Velez, 273 A.3d 6, 12 (Pa. Super. 2022) (citing Walls, 926 A.2d at 963)

(internal quotation marks omitted). The imposed sentence reflected a

substantial downward departure from the Sentencing Guidelines’

recommendations, but we cannot say that the sentencing court abused its

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discretion in imposing this sentence. Given the court’s consideration of the

PSI report, and its emphasis on its findings concerning Defendant’s “great

working history” and his “great relationship with his family,” see N.T.

Sentencing Hearing, 8/8/24, 31, the sentencing court relied on additional,

proper factors for mitigation and clearly felt that the chosen sentence – while

perhaps too low for members of this Court – was adequate to protect the

public and suit Defendant’s rehabilitative needs in light of the circumstances

presented. As we have no reason to believe from the record that the sentence

imposed was either irrational or not guided by sound judgment, we will not

otherwise find an abuse of discretion under the totality of the circumstances.

Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judge Bowes joins the memorandum.

Judge Beck files a concurring memorandum.

Date: 6/23/2026

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