J-S23020-23
2023 PA Super 197
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTHONY J. BANNIGER :
:
Appellant : No. 1612 EDA 2022
Appeal from the Judgment of Sentence Entered May 27, 2022,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0000335-2021.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and KING, J.
OPINION BY KUNSELMAN, J.: FILED OCTOBER 11, 2023
Anthony Banniger appeals from the judgment of sentence entered after
he was convicted of rape by forcible compulsion, involuntary deviate sexual
intercourse by forcible compulsion,1 and other offenses committed against
J.Z., a minor in his extended family. We affirm.
In this case we must determine whether a conviction for a sexual offense
“by forcible compulsion” can stand if the victim was unconscious when the
assault began. For reasons discussed herein, we hold that evidence that a
defendant had intercourse with an unconscious person, without more, is
insufficient to prove forcible compulsion. Such conduct is fully proscribed in
other statutory subsections. However, the person’s unconsciousness is a
relevant circumstance as to whether the defendant used force while having
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1 18 Pa.C.S.A. §§ 3121(a)(1) and 3123(a)(1), respectively.
J-S23020-23
intercourse. Further, evidence that a victim is unable to move out of fear of
a defendant can be sufficient to prove forcible compulsion.
Banniger had a non-jury trial on October 26, 2021. At trial, J.Z. testified
that Banniger started touching her body with his hands when she was 10 years
old, first over her clothes and then under them. The escalating physical
contact rendered J.Z. unable to move: “[Banniger] would like rub all over me,
like, just rub me. And I would be real disgusted, but there was nothing I could
do. It was like a fear, like, a frozenness. You can’t really move your body.”
N.T., 10/26/21, at 20.
J.Z. moved out of state at age 14. At age 15, she returned and lived in
the same house as Banniger. Banniger would provide marijuana to J.Z., and
they would smoke together while they were alone in the house. At times,
Banniger told J.Z. that he liked her and wanted to be with her; J.Z. told
Banniger to stop. After J.Z. smoked with Banniger, she went to her room to
lie down. On two such occasions, Banniger proceeded to sexually assault J.Z.
In the first incident,2 J.Z. woke up in her aunt’s room. Her shorts were
pulled to the side, and Banniger had his head between her legs and his tongue
on and inside her vagina. J.Z. did not testify that she was frozen with fear in
the first incident or that Banniger used any force in the first incident. She did
not testify how long Banniger continued or how the first incident ended.
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2 J.Z. said the first incident described here was “the most recent one” and the
second incident described here was “the second time,” which “happened just
like it happened the first time.” N.T., 10/26/21, at 21, 26–27.
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In the second incident, J.Z. woke up in her grandmother’s room. Like
the first time, J.Z.’s clothes were to the side and Banniger’s tongue was in her
vagina. Banniger then pulled J.Z.’s pants off and penetrated her vagina with
his penis. As Banniger progressed, J.Z. was “frozen with fear” and “just let it
happen to [her] because [she] didn’t know what else to do.” Id. at 27–28.
J.Z. then “had to fight a little bit” to push Banniger off of her because “[h]e
was being forceful.” Id. at 29. J.Z. ran to another room. She later told her
older sister about the abuse.
The trial court found Banniger guilty of rape by forcible compulsion,
involuntary deviate sexual intercourse by forcible compulsion, unlawful
contact with a minor, statutory sexual assault, corruption of a minor, indecent
assault of a person less than 13, involuntary deviate sexual intercourse of an
unconscious person, and sexual assault.3 On May 27, 2022, the court
sentenced Banniger to an aggregate term of 14 to 34 years of imprisonment,
followed by three years of probation.
Banniger filed a post-sentence motion on June 5, 2022, which the trial
court denied on June 7, 2022. Banniger timely appealed on June 15, 2022.
Banniger filed a concise statement of matters complained of on appeal in
compliance with Pennsylvania Rule of Appellate Procedure 1925(b). The trial
court entered an opinion on October 13, 2022.
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3 18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1), 6318(a)(1), 3122.1(b),
6301(a)(1)(ii), 3126(a)(7), 3123(a)(3), and 3124.1.
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Banniger presents four questions for review:
1. Was the evidence insufficient to prove Banniger guilty of
involuntary deviate sexual intercourse by forcible compulsion?
2. Was the evidence insufficient to prove Banniger guilty of rape
by forcible compulsion?
3. Did the trial court err by denying Banniger’s request for a new
trial as the weight of the evidence should have resulted in an
acquittal of all charges?
4. Did the trial court err by imposing a manifestly excessive and
unreasonable sentence?
Banniger’s Brief at 5 (reordered).
Banniger’s first two issues concern the sufficiency of the evidence.
“Because a determination of evidentiary sufficiency presents a question of law,
our standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Woodard, 129 A.3d 480, 489 (Pa. 2015) (citing
Commonwealth v. Sanchez,
36 A.3d 24, 37 (Pa. 2011)). Our inquiry is
“whether viewing all of the evidence admitted at trial in the light most
favorable to the verdict winner, there is sufficient evidence to enable the fact-
finder to find every element of the crime beyond a reasonable doubt.”
Commonwealth v. Spence,
290 A.3d 301, 309 (Pa. Super. 2023) (quoting
Commonwealth v. Gause,
164 A.3d 532, 540 (Pa. Super. 2017) (en banc)).
Further, a complainant’s testimony does not need to be corroborated to
constitute sufficient evidence of a sexual offense. Commonwealth v.
Poindexter,
646 A.2d 1211, 1214 (Pa. Super. 1994) (citing Commonwealth
v. Gabrielson,
536 A.2d 401 (Pa. Super. 1988)); see 18 Pa.C.S.A. § 3106.
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The crimes of rape and involuntary deviate sexual intercourse are
defined in relevant part as follows:
(a) Offense defined.--A person commits a felony of the first
degree when the person engages in sexual intercourse with a
complainant:
(1) By forcible compulsion.
(2) By threat of forcible compulsion that would prevent
resistance by a person of reasonable resolution.
(3) Who is unconscious or where the person knows that the
complainant is unaware that the sexual intercourse is
occurring.
(4) Where the person has substantially impaired the
complainant’s power to appraise or control his or her
conduct by administering or employing, without the
knowledge of the complainant, drugs, intoxicants or other
means for the purpose of preventing resistance.
(5) Who suffers from a mental disability which renders the
complainant incapable of consent.
18 Pa.C.S.A. § 3121(a) (rape).
(a) Offense defined.--A person commits a felony of the first
degree when the person engages in deviate sexual intercourse
with a complainant:
(1) by forcible compulsion;
(2) by threat of forcible compulsion that would prevent
resistance by a person of reasonable resolution;
(3) who is unconscious or where the person knows that the
complainant is unaware that the sexual intercourse is
occurring;
(4) where the person has substantially impaired the
complainant’s power to appraise or control his or her
conduct by administering or employing, without the
knowledge of the complainant, drugs, intoxicants or other
means for the purpose of preventing resistance; [or]
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(5) who suffers from a mental disability which renders him
or her incapable of consent[.]
18 Pa.C.S.A. § 3123(a)(1)–(5) (involuntary deviate sexual intercourse).
Both statutes require proof that a defendant engaged in a form of
intercourse, as well as an additional element. “Sexual intercourse,” used in
Section 3121, is defined: “In addition to its ordinary meaning, includes
intercourse per os or per anus, with some penetration however slight;
emission is not required.” 18 Pa.C.S.A. § 3101. “Deviate sexual intercourse,”
used in Section 3123, is: “Sexual intercourse per os or per anus[4] between
human beings,” as well as intercourse with an animal and certain penetration
with a foreign object. Id.
Oral sex, intercourse per os, is included in the definitions of both sexual
intercourse and deviate sexual intercourse. Commonwealth v. Brown, 159
A.3d 531, 534 (Pa. Super. 2017). This includes licking a vagina.
Commonwealth v. Westcott,
532 A.2d 1140, 1145–47 (Pa. Super. 1987)
(holding “penetration of the vagina by the tongue” meets these definitions);
Interest of J.R.,
648 A.2d 28, 33 (Pa. Super. 1994) (holding “some form of
oral contact with the genitalia of the female victim” sufficient for deviate
sexual intercourse, even without “actual” penetration).
Vaginal sex—inserting a penis into a vagina, the “ordinary meaning” of
sexual intercourse—is not included in the definition of deviate sexual
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4 Intercourse “per os or per anus” refers to oral and anal sex.
Commonwealth v. Kelley, 801 A.2d 551, 555 (Pa. 2002) (citing
Commonwealth v. Hitchcock,
565 A.2d 1159 (Pa. 1989), and
Commonwealth v. Lee,
638 A.2d 1006 (Pa. Super. 1994)).
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intercourse. See Commonwealth v. Kelley, 801 A.2d 551, 555 (Pa. 2002)
(citing Commonwealth v. Brown,
711 A.2d 444, 450 (Pa. 1998), for the
ordinary meaning of sexual intercourse).
Under Subsections 3121(a)(1) and 3123(a)(1), the Commonwealth
must prove that the defendant engaged in intercourse “by forcible
compulsion.” By statute, forcible compulsion includes “[c]ompulsion by use
of physical, intellectual, moral, emotional or psychological force, either
express or implied.” 18 Pa.C.S.A. § 3101. Thus, in addition to “sheer physical
force or violence,” forcible compulsion encompasses “an act of using superior
force, physical, moral, psychological or intellectual[,] to compel a person to
do a thing against that person’s volition and/or will.” Commonwealth v.
Gonzalez, 109 A.3d 711, 720–21 (Pa. Super. 2015) (citing Commonwealth
v. Ables,
590 A.2d 334, 337 (Pa. Super. 1991)). For these sexual offenses,
the object of the force is “to compel a person to engage in sexual intercourse
[or deviate sexual intercourse] against that person’s will.” Commonwealth
v. Rhodes,
510 A.2d 1217, 1226 (Pa. 1986).
Whether a defendant used forcible compulsion depends on the totality
of the circumstances, including this non-exhaustive list of factors:
the respective ages of the victim and the accused, the respective
mental and physical conditions of the victim and the accused, the
atmosphere and physical setting in which the incident was alleged
to have taken place, the extent to which the accused may have
been in a position of authority, domination or custodial control
over the victim, and whether the victim was under duress.
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Id. Our courts have not specified every set of circumstances that can show
forcible compulsion, which turns on the facts of each case.
Id. at 1226.
Proof of forcible compulsion does not require evidence that the victim
resisted. Rhodes, 510 A.2d at 1227 n.14 (citing 18 Pa.C.S.A. § 3107). This
recognizes that a victim may not struggle against the attack of an assailant
who can physically overpower the victim. Commonwealth v. Lee,
638 A.2d
1006, 1008 (Pa. Super. 1994) (citing Commonwealth v. Gabrielson,
536
A.2d 401, 407 (Pa. Super. 1988)). The inquiry is whether the defendant’s
physical, intellectual, moral, emotional, or psychological force compelled the
victim to submit to intercourse against the victim’s will, not whether the victim
resisted the compulsion. Rhodes,
510 A.2d at 1226, 1227 n.14.
Similarly, the law distinguishes forcible compulsion by a defendant from
a lack of consent by a victim. While “[e]ffective consent to sexual intercourse
will negate a finding of forcible compulsion,” forcible compulsion is “‘something
more’ than mere lack of consent.” Commonwealth v. Buffington, 828 A.2d
1024, 1225 (Pa. 2003) (citing Commonwealth v. Williams,
383 A.2d 503
(Pa. 1978)); Gonzalez (quoting Commonwealth v. Smolko,
666 A.2d 672,
676 (Pa. Super. 1995)); see Commonwealth v. Berkowitz,
641 A.2d 1161,
1164 (Pa. 1994) (“[W]here there is a lack of consent, but no showing of either
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physical force, a threat of physical force, or psychological coercion, the
‘forcible compulsion’ requirement . . . is not met.”).5
Relatedly, forcible compulsion subsumes a lack of consent. Buffington,
828 A.2d at 1031–32 (citing Berkowitz, 641 A.2d at 1165). That is, if the
Commonwealth proves that a defendant exercised forcible compulsion, then
it has proved that the victim did not consent. Thus, sexual assault (sexual
intercourse or deviate sexual intercourse without consent) is a lesser-included
offense of involuntary deviate sexual intercourse by forcible compulsion (and,
by the same logic, of rape by forcible compulsion). Id. at 1032 (comparing
18 Pa.C.S.A. §§ 3124.1 and 3123(a)(1)). Along these same lines, proof that
a defendant had intercourse with an unconscious victim implies that the victim
did not consent. Id. (citing Commonwealth v. Erney,
698 A.2d 56, 58–59
(Pa. 1997), and concluding that sexual assault is a lesser-included offense of
Sections 3121(a)(3) and 3123(a)(3)).
From this legal landscape, it does not follow that every person who has
intercourse with an unconscious victim does so by forcible compulsion. While
an unconscious victim cannot consent to intercourse, forcible compulsion
requires something more than non-consent. Buffington, 828 A.2d at 1031–
32. A victim’s “mental and physical condition[],” which can include lack of
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5 After Berkowitz, the General Assembly enacted Act 10 of 1995 (Spec. Sess.
1), to establish the crime of sexual assault, codified at 18 Pa.C.S.A. § 3124.1.
This statute prohibits sexual intercourse or deviate sexual intercourse without
consent. It does not require proof of forcible compulsion. Act 10 also codified
the definition of forcible compulsion in Section 3101, using language following
Commonwealth v. Rhodes, 510 A.2d 1217, 1226 (Pa. 1986).
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consciousness, is only one circumstance to be considered under the totality
test for forcible compulsion. Rhodes, 510 A.2d at 1226. We therefore hold
that evidence that a victim was unconscious, without more, is insufficient to
prove that the defendant used “forcible compulsion.” Cf. Commonwealth v.
Titus,
556 A.2d 425, 429–30 (Pa. Super. 1989) (reaching a similar holding
that a parent–child relationship, without more, is insufficient to prove forcible
compulsion).
This holding fits within the statutory scheme. The General Assembly
has subdivided the relevant statutes to proscribe intercourse by forcible
compulsion and against an unconscious person. 18 Pa.C.S.A. §§ 3121(a)(1),
(3), and 3123(a)(1), (3). These subsections cover different conduct and
protect different interests of victims—the interest against being forcibly
compelled to submit to intercourse and the interest against being subjected
to intercourse while unconscious.6 To presume forcible compulsion from every
instance of intercourse with an unconscious person would render portions of
the statutes nullities. See, e.g., Commonwealth v. Thompson, 2
Pa.D.&C.4th 632, 655 (C.P. Phila. 1989).
Here, J.Z. described two incidents where Banniger put his tongue in her
vagina. This meets the definition of deviate sexual intercourse. Westcott,
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6 Nothing here would prohibit charging a defendant under multiple subsections
given the factual allegations in each case. See Commonwealth v. Price,
616 A.2d 681, 683–84 (Pa. Super. 1992) (finding sufficient evidence of rape
by forcible compulsion and rape of an unconscious person where the victim
woke up during sexual intercourse and the defendant continued penetration
and physically struggled with her).
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supra; J.R., supra. Both incidents began while J.Z. slept after using
marijuana from Banniger; J.Z. woke up to find Banniger’s head between her
legs. Regarding the first incident, J.Z. did not describe Banniger continuing
the deviate sexual intercourse after she woke up. However, as to the second
incident, J.Z. testified that she was frozen with fear as the abuse progressed.7
She was awake and “just let it happen” because she was unsure what to do.
Under the totality of the circumstances, including Banniger’s extended familial
relationship with J.Z., the use of marijuana with no one else at home, and
J.Z.’s unconsciousness and subsequent fear that rendered her unable to move,
the evidence sufficiently established that Banniger committed deviate sexual
intercourse by forcible compulsion.8 We therefore affirm this conviction.
In the second incident, J.Z. testified that Banniger pulled her pants off
and penetrated her vagina with his penis. This meets the definition of sexual
intercourse. Kelley, 801 A.2d at 555. When Banniger did this, J.Z. was frozen
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7 J.Z. testified that after she awoke, Banniger then proceeded to pull off her
pants and put his penis in her vagina. As addressed infra, this is sexual
intercourse. However, it does not meet the definition of deviate sexual
intercourse. The relevant inquiry under Section 3123(a)(1), involuntary
deviate sexual intercourse by forcible compulsion, is whether Banniger had
deviate sexual intercourse—i.e., oral sex—by forcible compulsion.
Here, J.Z. woke up to perceive Banniger’s head between her legs, which
he kept there long enough for her to feel frozen with fear before he proceeded
to do other actions. Therefore, J.Z.’s fear is relevant in determining forcible
compulsion for this offense.
8 We observe that Banniger was also properly convicted of involuntary deviate
sexual intercourse of an unconscious person. 18 Pa.C.S.A. § 3123(a)(3); see
Price, 616 A.2d at 684 (finding evidence sufficient of an analogous rape
charge where the victim woke up to find the defendant’s penis in her vagina).
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with fear, similar to how she felt when Banniger rubbed her body with his
hands going back to when she was ten years old. Given that Banniger was an
adult in J.Z.’s extended family, who had previously abused her, J.Z.’s
testimony that she was frozen with fear during this incident was sufficient to
allow the trial court to conclude that Banniger forcibly compelled J.Z. to submit
to sexual intercourse against her will. We therefore affirm Banniger’s
conviction for rape by forcible compulsion.
Banniger’s third issue concerns the weight of the evidence, which he
preserved by filing a post-sentence motion for a new trial. Banniger argues
that the trial court should have granted a new trial because J.Z.’s testimony
was inconsistent with her previous statements, J.Z. had a motive to lie, and
the Commonwealth did not introduce physical evidence or corroborating
testimony. Unlike a sufficiency challenge, we review a weight challenge to
determine whether the trial court abused its discretion:
The weight given to trial evidence is a choice for the
factfinder. If the factfinder returns a guilty verdict, and if a
criminal defendant then files a motion for a new trial on the basis
that the verdict was against the weight of the evidence, a trial
court is not to grant relief unless the verdict is so contrary to the
evidence as to shock one’s sense of justice.
When a trial court denies a weight-of-the-evidence motion,
and when an appellant then appeals that ruling to this Court, our
review is limited. It is important to understand we do not reach
the underlying question of whether the verdict was, in fact,
against the weight of the evidence. We do not decide how we
would have ruled on the motion and then simply replace our own
judgment for that of the trial court. Instead, this Court determines
whether the trial court abused its discretion in reaching whatever
decision it made on the motion, whether or not that decision is the
one we might have made in the first instance.
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Moreover, when evaluating a trial court’s ruling, we keep in
mind that an abuse of discretion is not merely an error in
judgment. Rather, it involves bias, partiality, prejudice, ill-will,
manifest unreasonableness or a misapplication of the law. By
contrast, a proper exercise of discretion conforms to the law and
is based on the facts of record.
Commonwealth v. Arnold, 284 A.3d 1262, 1277 (Pa. Super. 2022) (quoting
Commonwealth v. West,
937 A.2d 516, 521 (Pa. Super. 2007)).
Notably, the trial court’s role changes in ruling on a post-sentence
motion after a non-jury trial. “Post-trial, the court cannot re-deliberate[,] as
it is no longer the fact finder.” Commonwealth v. Wilson, 227 A.3d 928,
938 (Pa. Super. 2020) (quoting Commonwealth v. Robinson,
33 A.3d 89,
94 (Pa. Super. 2011)). “Although weight of the evidence claims have been
addressed in non-jury cases, there is a logical inconsistency in asking a trial
judge to conclude that his non-jury decision shocked his own conscience.”
Commonwealth v. Wise, No. 1145 EDA 2021,
2022 WL 2442141, at *5 (Pa.
Super. July 5, 2022) (non-precedential decision). “[I]t would be highly
incongruous for a trial judge presiding over a non-jury trial to find [his] own
decision shocks [his] conscience. . . . [A] judge in a non-jury trial has the dual
duties of determining the weight and admissibility of evidence. A trial court
sitting as fact-finder is unlikely to find, in response to a post-sentence motion,
that it reached a verdict contrary to the evidence.” Commonwealth v.
Matthews, No. 125 MDA 2020,
2020 WL 7047114, at *5 (Pa. Super. Dec. 1,
2020) (non-precedential decision) (Strassburger, J., concurring).
With this standard in mind, the trial court thoroughly addressed
Banniger’s arguments about the deficiencies in the evidence against him,
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concluding that the verdict was not “shocking to the conscience.” Trial Court
Opinion, 10/13/22, at 15–20. We discern no abuse of discretion. As the trial
court reasoned, the minor inconsistencies in J.Z.’s recollection did not disturb
her testimony about the specific incidents of abuse that Banniger committed.
Further, J.Z. was a witness to Banniger’s crimes, and her testimony did not
need to be corroborated for the court, as fact-finder, to accept her testimony
as credible. Because the trial court did not abuse its discretion in denying
Banniger’s post-sentence motion for a new trial, Banniger’s third issue fails.
Banniger’s fourth issue concerns the discretionary aspects of his
aggregate sentence of 14 to 34 years of imprisonment followed by three years
of probation. To determine whether an appellant has invoked this Court’s
jurisdiction over a discretionary-aspects claim, we evaluate:
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Aulisio, 253 A.3d 338, 343–44 (Pa. Super. 2021)
(quoting Commonwealth v. Moury,
992 A.2d 162, 170 (Pa. Super. 2010)).
Here, Banniger complied with the first three requirements to invoke our
jurisdiction by filing a post-sentence motion to reconsider his sentence, filing
a notice of appeal, and including a Rule 2119(f) statement in his brief. He
urges us to find a substantial question by asserting that the trial court imposed
an excessive sentence disproportionate to his conduct without considering
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certain factors. Banniger’s Brief at 11 (listing his “age, rehabilitative needs,
traumatic childhood, mental health issues, family support, and employment
history” as factors not carefully considered). “[A]n excessive sentence claim—
in conjunction with an assertion that the court failed to consider mitigating
factors—raises a substantial question.” Commonwealth v. Akhmedov, 216
A.3d 307, 328 (Pa. Super. 2019) (en banc) (quoting Commonwealth v.
White,
193 A.3d 977, 983 (Pa. Super. 2018)). Therefore, Banniger has
invoked this Court’s jurisdiction, and we proceed to the merits of his claim.
Once our jurisdiction is established, we proceed to review whether the
sentencing court abused its discretion, bearing in mind the following statute:
(c) Determination on appeal.--The appellate court shall vacate
the sentence and remand the case to the sentencing court with
instructions if it finds:
(1) the sentencing court purported to sentence within the
sentencing guidelines but applied the guidelines
erroneously;
(2) the sentencing court sentenced within the sentencing
guidelines but the case involves circumstances where the
application of the guidelines would be clearly unreasonable;
or
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the sentence
imposed by the sentencing court.
(d) Review of record.--In reviewing the record the appellate
court shall have regard for:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
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(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S.A. § 9781(c) and (d); see Aulisio, 253 A.3d at 344–45.
Banniger argues that the sentencing court discredited mitigating factors,
including that he was physically and sexually abused as a child, received
deficient treatment, obtained training and employment as a truck driver
despite his prior convictions, and supported his own children. Banniger’s Brief
at 17–18. He further notes that his sentence was years longer than the
Commonwealth’s recommendation of 8 to 16 years.
The trial court noted that Banniger’s sentence at each count was within
the standard range of the sentencing guidelines. Trial Court Opinion,
10/13/22, at 23–25. Further, all but one term of imprisonment was ordered
to run concurrently. The court explained its rationale for sentencing as
follows:
[Banniger’s] sentences were reasonable considering the nature of
[Banniger’s] crimes. [Banniger] began sexually assaulting J.Z.,
who he had known for practically her entire life . . . , when she
was ten years old. [Banniger’s] conduct worsened as J.Z. got
older to the extent that he raped J.Z. and engaged in involuntary
deviate sexual intercourse without her consent when she was
fifteen years old. [Banniger’s] contentions that his sentences
were excessive and disproportionate to his conduct and that [the
sentencing court] failed to consider the sentencing guidelines are
therefore without merit.
[Regarding Banniger’s claims that the court did not consider
relevant factors, the court ordered a presentence investigation
and mental health screening prior to sentencing.] At sentencing
it was discovered that a mental health evaluation was never
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completed for [Banniger]. [Banniger’s] counsel conferred with
[Banniger], who subsequently agreed to waive the mental health
report.
During the sentencing hearing, [the sentencing court] heard
argument from the Commonwealth and [Banniger’s] sentencing
counsel and observed [Banniger] when he was given opportunity
to address the [court. The court] also reviewed the presentence
investigation report prepared prior to sentencing, which contained
relevant information about [Banniger’s] character, including
abuse he suffered as a child and incidents that he was involved in
at several juvenile placements. Subsequently, [the court] plainly
stated its reasons on the record for imposing [Banniger’s]
aggregate sentence and why it exceeded the sentence
recommended by the Commonwealth:
I do recognize this was a waiver trial. But what was testified
to here and what happened, coupled with the defendant’s
background, incidents in juvenile facilities, in the state
prison, repeatedly going to the state prison over and over
again not for sex offenses, but for drug dealing and other
things and still coming out and doing these things…
You’re an individual who both has ability and can perpetrate
what occurred here, which did not come out for a number
of years.
…
I give this sentence because I don’t think, Mr. Banniger,
until you’ve had years of sufficient treatment and been away
[you] are safe to be around younger people. What
happened here is going to have a lifelong effect on the
complainant as she testified. She didn’t want to bring it out.
I saw the texts; I heard the testimony.
What you’ve created because she wanted to protect others
in the family by putting up with this for years, and the
grooming that was involved starting with not penetration,
but other things, in my opinion makes you very, very
dangerous in the future.
I hope you will get the treatment because you will get out,
and I hope when you do get out none of this will ever happen
again.
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Accordingly, the record reflects that [the sentencing court]
imposed [Banniger’s] aggregate sentence of fourteen to thirtyfour years of confinement and three years of sex offender
probation based on multiple factors. These factors included the
need to protect the community from dangerous offenders like
[Banniger], the gravity of [Banniger’s] offenses in grooming and
sexually assaulting J.Z. at such a young age, and [Banniger’s]
rehabilitative needs for his eventual release.
Id. at 25–27 (numerals and record citations omitted). We discern no abuse
of discretion. The court demonstrated that it carefully considered the case
and imposed a sentence within the guidelines. Because Banniger has not
shown that the application of the guidelines was clearly unreasonable, we
affirm. 42 Pa.C.S.A. § 9781(c)(2).
Judgment of sentence affirmed. Jurisdiction relinquished.
Date: October 11, 2023
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