Com. v. Fratangeli, D. (memorandum)

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J-A20002-22 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA v. DOMINIC JOHN FRATANGELI Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 148 EDA 2022 Appeal from the Judgment of Sentence Entered July 7, 2021 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0003622-2018 BEFORE: BENDER, P.J.E., STABILE, J., and PELLEGRINI, J.* MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 1, 2022 Appellant, Dominic John Fratangeli, appeals from the judgment of sentence of an aggregate term of 4 to 10 years’ incarceration, imposed after he was convicted of rape by forcible compulsion, 18 Pa.C.S. § 3121(a)(1); involuntary deviate sexual intercourse by forcible compulsion, 18 Pa.C.S. § 3123(a)(1); sexual assault, 18 Pa.C.S. § 3124.1; and two counts of aggravated indecent assault, 18 Pa.C.S. § 3125(a)(1) and (2). After careful review, we affirm. Appellant was convicted of the above-stated offenses following a threeday jury trial in March of 2021, based on evidence that he had oral and vaginal sex with an adult, female victim without her consent and by forcible compulsion. On July 7, 2021, he was sentenced to the aggregate term set ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-A20002-22 forth supra. He filed a timely post-sentence motion, which the court denied. Appellant then filed a timely notice of appeal, and he complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. The court filed its Rule 1925(a) opinion on March 10, 2022. Herein, Appellant states five issues for our review: I. Whether the evidence was insufficient to support the convictions for rape, involuntary deviate sexual intercourse, and aggravated indecent assault (forcible compulsion) because the Commonwealth failed to prove the element of “forcible compulsion” beyond a reasonable doubt for each offense. II. Whether the findings of guilt on the charges of rape, involuntary deviate sexual intercourse, and aggravated indecent assault (forcible compulsion) are against the weight of the evidence where the testimony of the complaining witness was vague and lacked specificity regarding “forcible compulsion.” III. Whether the trial court abused its discretion by precluding Appellant from publishing a portion of the Sexual Assault Nurse Examiner (“SANE”) report, which related to injuries to the complaining witness, to the jury. Whether the trial court further abused its discretion by not allowing the SANE report to be provided to the jury during deliberations. IV. Whether the trial court committed an error of law and/or abused its discretion when the court gave the jury an instruction on “hue and cry,” which instructed the jury that a prompt complaint is circumstantial evidence of the sexual assault itself as well as “significant circumstantial support” of the victim’s testimony that she was sexually assaulted. V. Whether the trial court improperly considered Appellant’s silence at sentencing regarding the criminal charges as failure to accept responsibility and show remorse. Appellant’s Brief at 5-6. -2- J-A20002-22 In assessing Appellant’s issues, we have reviewed the certified record, the briefs of the parties, and the applicable law. Additionally, we have examined the 76-page, well-reasoned opinion of the Honorable Analisa Sondergaard of the Court of Common Pleas of Chester County. We conclude that Judge Sondergaard’s comprehensive opinion accurately disposes of the issues presented by Appellant. See Trial Court Opinion, 3/10/22, at 2-53 (rejecting Appellant’s argument that the Commonwealth’s evidence was insufficient to prove the element of forcible compulsion); 1 id. at 53-56 (finding ____________________________________________ We add to the court’s analysis of this issue a discussion of Appellant’s reliance on Commonwealth v. Berkowitz, 641 A.2d 1161 (Pa. 1994). There, Berkowitz “push[ed the complainant] onto [a] bed, … removed her undergarments from one leg[,]” and “then penetrated her vagina with his penis.” Id. at 1163. Before the assault, Berkowitz locked the door of the room that he and the victim were in. Id. at 1164. However, the victim “never attempted to go to the door or unlock it.” Id. Berkowitz also did not use his hands to physically “restrain[] her in any manner during the actual penetration….” Id. Our Supreme Court found these facts insufficient to prove that Berkowitz used forcible compulsion. Id. Appellant contends that the present facts mirror those in Berkowitz and, thus, we must reach the same conclusion as our Supreme Court did in that case. 1 We disagree. Here, unlike in Berkowitz, the evidence established that Appellant used physical force on the victim. For instance, the victim testified that, as she sat on the couch, Appellant “pulled [her] down so that … [her] behind was … at the edge of the sofa.” N.T. Trial, 3/16/21, at 64. Appellant “started pulling at [her] pants” and she tried several times to pull them back up while telling him to stop. Id. at 65, 67. Nevertheless, Appellant “grabbed the ankles of [her] pants and pulled them off.” Id. Appellant then performed oral sex on the victim as she “hit him on the shoulders, … trying to get him to retreat….” Id. at 68. Appellant then “grabbed [her] hands” and “pulled [her] into a standing position[,]” after which he “kind of pivoted [her] body and put [her] down on the floor of the living room.” Id. at 69. As Appellant held her legs, he penetrated her vagina with his penis. Id. at 70. The victim testified (Footnote Continued Next Page) -3- J-A20002-22 meritless Appellant’s claim that the jury’s verdict was contrary to the weight of the evidence); id. at 61-64 (rejecting Appellant’s argument that the court abused its discretion by not publishing to the jury a portion of the SANE report or allowing that report to be provided to the jury during deliberations); id. at 64-69 (concluding that Appellant’s challenge to the ‘hue and cry’ jury instruction is meritless);2 and id. at 69-72 (rejecting Appellant’s claim that ____________________________________________ that she had told Appellant no “[c]ountless” times and had just “given up.” Id. at 71. During a subsequently-recorded phone call between the victim and Appellant, he seemingly conceded that he had “ripped [her] pants off,” responding to her statement that he did so by apologizing and saying, “I thought you wanted it.” Exhibit C-26, 3/17/21, at 5. When the victim asked Appellant what “made [him] think [she] wanted it” when she “was screaming no[,]” Appellant said that he “thought [she] was joking” and apologized. Id. We conclude that this evidence distinguishes the present case from Berkowitz and supports the trial court’s conclusion that the evidence was sufficient to prove Appellant used forcible compulsion. In regard to Appellant’s jury-instruction challenge, he contends that “[t]here is no legal precedent that permits a jury instruction on ‘hue and cry’” and that the instruction “was particularly problematic in two aspects.” Appellant’s Brief at 41. Specifically, Appellant argues that the instruction “improperly allowed the jury to consider [the victim’s] prompt complaint as circumstantial evidence that the underlying assault occurred[,]” and it “bolstered the credibility of [the victim] by stating that the prompt complaint constituted ‘strong circumstantial evidence’ for [her] testimony that she was assaulted.” Id. at 42. 2 Notably, Appellant did not immediately object to the at-issue instruction when it was given. See N.T. Trial, 3/17/21, at 213-14. When he did object, after the instructions were finished and the jury was excused from the courtroom, he did not offer any specific grounds for challenging the instruction. Id. at 223. Instead, defense counsel simply stated, “Your Honor, just note my objection to the hue and cry instruction that was given regarding a prompt complaint.” Id. Appellant points out that the court conducted a meeting with the parties “regarding the jury instructions prior to closing arguments.” Appellant’s Brief at 15 (citing N.T. Trial, 3/17/21, at 110). However, that (Footnote Continued Next Page) -4- J-A20002-22 the court improperly considered his silence at sentencing as a failure to accept responsibility or show remorse). Accordingly, we adopt Judge Sondergaard’s opinion as our own and affirm Appellant’s judgment of sentence for the reasons set forth therein.3 Judgment of sentence affirmed. ____________________________________________ meeting “was not held on the record” and, thus, we cannot discern whether Appellant raised the specific challenges to the jury instruction that he presents on appeal. Id. Moreover, Appellant did not raise these claims in his Pa.R.A.P. 1925(b) statement. Therein, Appellant simply quoted the at-issue instruction, prefaced by a statement that “the trial court committed an error of law and/or abused its discretion when the court instructed the jury as follows[.]” See Pa.R.A.P. 1925(b) Statement, 1/3/22, at 2 ¶ 5. Due to Appellant’s failure to specifically object to the ‘hue and cry’ instruction on the record or raise his appellate claims in his Rule 1925(b) statement, the trial court did not address those arguments at the time of trial, or in its Rule 1925(a) opinion. As such, we conclude they are waived. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”). Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.”). To the extent the court generally discusses the basis for its decision to provide a ‘hue and cry’ jury instruction, we discern no abuse of discretion in its rationale. Thus, we adopt it herein. 3 The court addresses two other issues in its opinion that Appellant has not raised on appeal. See id. at 56-61 (finding meritless Appellant’s allegation that the court abused its discretion by precluding him from cross-examining the victim regarding her medications and mental health diagnosis); id. at 7276 (rejecting Appellant’s claim that his sentence is illegal because his two counts of aggravated indecent assault should have merged with his convictions for rape, involuntary deviate sexual assault, and sexual assault). We do not adopt the court’s analysis of these claims, as Appellant has abandoned them herein. -5- J-A20002-22 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/1/2022 -6- Circulated 10/06/2022 11:57 AM Circulated 10/06/2022 11:57 AM

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