Com. v. Johnson, E.

• Court: Superior Court of Pennsylvania
• Decided: April 16, 2026
• Docket: 717 MDA 2025
• Status: Unpublished
• Author: Dubow

Opinion

J-S03004-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERICK N. JOHNSON : : Appellant : No. 717 MDA 2025

Appeal from the Judgment of Sentence Entered October 10, 2023 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0001671-2021

BEFORE: DUBOW, J., BECK, J., and LANE, J.

MEMORANDUM BY DUBOW, J.: FILED: APRIL 16, 2026

Appellant, Erick N. Johnson, appeals from the October 10, 2023

judgment of sentence entered in the Lycoming County Court of Common Pleas

following his convictions for six counts of Rape of a Child. Appellant challenges

the discretionary aspects of his sentence as well as the sufficiency and weight

of the evidence. After careful consideration, we affirm the judgment of

sentence.

In September 2021, Appellant’s younger cousins, M.B. and N.H.,

reported to police that Appellant repeatedly raped them while babysitting

them between 1992 and 1996, when Appellant would have been

approximately 14 to 17 years old.1 The Commonwealth charged Appellant

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1 The Commonwealth indicated that the parties agreed to “proceed under the

assumption that everything would have occurred when [Appellant] was a juvenile[.]” N.T. Sent’g, 10/10/23, at 8. J-S03004-26

with ten total counts of Rape of a Child, with five counts relating to each

victim.2

At the June 9, 2023 jury trial, M.B, then 34 years old, testified that the

abuse began when she was approximately four years old and continued for

four or five years. She testified that “he would put his penis in [her] vagina

and in [her] butt” and estimated that the abuse occurred “about 100” times.

N.T. Trial, 6/9/23, at 30, 34-35. She provided specific details regarding at

least three events: once when she was on his bed looking into a mirror, one

incident which caused her to bleed from her anus, and one time in her aunt’s

house in Jersey Shore, Pennsylvania. She stated that her sister told her

parents about the abuse when they were younger, but her father prevented

her mother from informing the police. She explained that she eventually

contacted police in hopes of preventing another child from experiencing what

she “went through.” Id. at 38.

N.H., who was 37 years old at the time of trial, testified that the abuse

began when she was five years old and estimated that he penetrated her

vaginally or anally over “[o]ver 25 times[.]” Id. at 74. She stated that she

“clearly remembered” the first incident of abuse occurring in the alley behind

a Kwik Fill gas station when he digitally penetrated her vagina. Id. at 69-70.

She recounted a second incident where another cousin, Jerry, discovered

Appellant with her in her room when she did not have on pants. Id. at 89-

2 18 Pa.C.S. § 3121(c).

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90. After this incident, Appellant threatened to throw her out the window if

she “told Jerry or anyone else[.]” Id. at 70-71. She additionally testified to

a specific incident of oral sex in the attic of her house. Id. at 75. She detailed

an incident where she experienced “unbearable” pain when he inserted his

penis, wrapped in “saran wrap,” into her anus. Id. at 76. N.H. claimed to

have told Jerry’s “female friend” of the abuse around the time that Jerry saw

Appellant in her room and that she told her mother when she turned eighteen,

but that “nothing was done.” Id. at 77. She later reported the abuse to police

after her sister provided her statement.

The Commonwealth additionally called Agent Benjamin Hitesman, in

part to introduce a video of Agent Hiteman’s interview with Appellant

regarding M.B. and N.H.’s allegations. The court summarized the recording,

stating that “Appellant answered most questions with ‘I don’t remember’

before expanding further on certain details that did come out, such as the

exploration of bodies and that sex is not an impossibility, but he just cannot

recall practically anything from his childhood.” Trial Ct. Op., 9/9/25, at 10.

Appellant also alleged during the interview that “he was molested as a child,

but that he buried the events and [did] not understand rehashing stuff that

possibly happened in our childhood and why it’s being brought up now.” Id.

at 9 (internal footnotes and quotation marks omitted).

At the conclusion of trial, the jury found Appellant guilty of three counts

of Rape of a Child relating to M.B. and three counts relating to N.H., finding

Appellant not guilty of the remaining four counts.

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On October 10, 2023, the court held a sentencing hearing, at which it

acknowledged reviewing the presentence investigation report (“PSI”). During

the hearing, the parties agreed that Appellant had an offense gravity score of

9 and no prior record, which resulted in a standard range sentence of 36 to

60 months for each count under the “sentencing guidelines of the third

edition[.]” N.T. Sent’g at 2, 7.3 Appellant’s counsel urged the court to “ignore

the guidelines” and impose “probation” given that Appellant was a juvenile at

the time of the offenses, had been himself molested, and had not committed

any other crimes. Id. at 5. Appellant’s paramour and her sister spoke in

support of Appellant.

After hearing from both victims in the case, the court sentenced

Appellant to a standard range sentence of 42 to 120 months on each of the

six counts of Rape. The court imposed the three counts relating to M.B. to

run concurrently and the three counts relating to N.H. to run concurrently, but

it imposed the sentence relating to N.H. to be served consecutively to the

sentence relating to M.B., for an aggregate of 7-20 years of incarceration. In

imposing the sentence, the court expressly considered Appellant’s “age at the

time these occurred[,]” the “subsequent 20 years, roughly, he has remained

out of the criminal system[,]” “his own trauma[,]” and “concerns with

[Appellant’s] mental health over the years[.]” Id. at 14-15. The court

balanced these factors against the “age of the victims,” who had been placed ____________________________________________

3 The parties agreed that Sexual Offender Notification and Registration Act did

not apply to Appellant, given the dates of the offenses. Id. at 17-18.

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in Appellant’s care, and the “nature of the offense[s].” Id. at 15. The court

explained that it imposed consecutive sentences as the case involved two

victims. Id. at 17.

Appellant filed a direct appeal challenging the discretionary aspects of

his sentence. This Court dismissed his first appeal, concluding that counsel

failed to preserve his claim.4 After Appellant filed a Post-Conviction Relief Act

petition claiming ineffective assistance of counsel, the court reinstated his

right to file a post-sentence motion. Appellant then filed post-sentence

motions, which the court denied by operation of law on May 28, 2025. See

Pa.R.Crim.P. 720(B)(3)(b).

Appellant filed a timely notice of appeal. Appellant and the court

complied with Pa.R.A.P. 1925.

Appellant raises the following questions on appeal:

[1.] Whether the evidence presented at trial failed to prove every element of the crimes charged beyond a reasonable doubt, and, therefore, was insufficient to support Appellant’s convictions.

[2.] Whether the guilty verdict following Appellant’s trial was against the weight of the evidence presented.

[3.] Whether the trial court imposed an unreasonable sentence by sentencing [Appellant] to 84-240 months [of] incarceration without taking into consideration any of the mitigating factors provided by defense counsel.

Appellant’s Br. at 7 (issues reordered and some capitalization omitted).

4 Commonwealth v. Johnson, 2024 WL 3634244 (Pa. Super. filed Aug. 2,

2024) (unpublished decision).

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We first address Appellant’s challenge to the sufficiency of the evidence.

Id. at 33-37. We review claims challenging the sufficiency of the evidence by

considering whether, “viewing all 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. Melvin, 103 A.3d 1, 39 (Pa. Super. 2014) (citation

omitted). Further, a conviction may be sustained wholly on circumstantial

evidence, and the trier of fact—while passing on the credibility of the witnesses

and the weight of the evidence—“is free to believe all, part[,] or none of the

evidence.” Id. at 40 (citation omitted). “Because evidentiary sufficiency is a

matter of law, our standard of review is de novo[,] and our scope of review is

plenary.” Commonwealth v. Brooker, 103 A.3d 325, 330 (Pa. Super. 2014)

(citation omitted).

A person commits the offense of Rape of a Child if he “engages in sexual

intercourse with a complainant who is less than 13 years of age.” 18 Pa.C.S.

§ 3121(c). “In addition to its ordinary meaning, [sexual intercourse] includes

intercourse per os or per anus, with some penetration however slight;

emission is not required.” 18 Pa.C.S. § 3101. “A rape victim’s uncorroborated

testimony to penal penetration is sufficient to establish sexual intercourse and

thus support a rape conviction.” Commonwealth v. Wall, 953 A.2d 581,

584 (Pa. Super. 2008).

In his sufficiency challenge, Appellant expressly contests the element of

“penetration.” Appellant’s Br. at 13, 34-37. In regard to the three counts

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relating to M.B., Appellant asserts that she alleged only that “he put his penis

in my anal[,]” [sic] arguing that such “a vague statement” is insufficient to

establish the element of penetration. Id. at 35 (citing N.T. Trial at 31).

Addressing N.H.’s testimony, Appellant proffers that the victim testified that

she could not remember the details of the incidents. Id. at 36. Appellant

contends that the victims’ “bald assertions claiming penetration, without

more, are not sufficient to convict him of a crime.” Id. at 35.

Appellant’s claim has no merit. As set forth above, a rape victim’s

uncorroborated testimony is sufficient to prove the element of “penetration,”

as the jury is free to believe all, part, or none of the testimony. Wall, 953

A.2d at 584. In this case, both N.H. and M.B. testified to Appellant penetrating

them approximately 25 and 100 times, respectively. In addition, each victim

detailed specific incidents involved in the progression of Appellant’s abuse.

Thus, the jury had sufficient evidence to convict Appellant of three counts of

Rape of a Child for each of the two victims.

In his second issue, Appellant claims that the verdict was against the

weight of the evidence. Appellant’s Br. at 26-33. “[W]here the trial court has

ruled on the weight claim[], an appellate court’s role is not to consider the

underlying question of whether the verdict is against the weight of the

evidence.” Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003).

“Rather, appellate review is limited to whether the trial court palpably abused

its discretion in ruling on the weight claim.” Id.

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A trial court reviewing a challenge to the weight of the evidence may

grant relief only if “the jury’s verdict is so contrary to the evidence as to shock

one’s sense of justice and the award of a new trial is imperative so that right

may be given another opportunity to prevail.” Commonwealth v. Clay, 64

A.3d 1049, 1055 (Pa. 2013) (citation omitted). “[A] true weight of the

evidence challenge concedes that sufficient evidence exists to sustain the

verdict but questions” the evidence that the jury chose to believe.

Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. Super. 2014).

Appellant argues that the convictions were against the weight of the

evidence because “the testimony provided in this case was so tenuous, vague

and uncertain that the verdict ‘shocked the conscience,’ as the victims did not

testify to any specific facts or details in regard[] to any sexual intercourse.”

Appellant’s Br. at 32. Appellant emphasizes the absence of any physical,

medical or other corroborating evidence. Id. at 28-29. Specifically, Appellant

observes that M.B. testified that she was at “doctors a lot when she was

younger” and yet the Commonwealth did not seek her medical records or her

school records Id. at 29. He complains that the Commonwealth did not

interview any of the victims’ family or friends to corroborate the allegations.

Id. at 28-29.

As set forth above, the record belies Appellant’s assertions and instead

supports the trial court’s rejection of Appellant’s weight claim. The court

explained that M.B. and N.H. detailed incidents that “correlate[d] with the

counts on which Appellant was found guilty.” Trial Ct. Op. at 23. The court

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also observed that Appellant in his video interview “did not deny the

allegations” and instead admitted that he and the victims “explor[ed] each

other.” Id. at 23, 22. In summary, the court opined that it did “not find that

the verdict rendered was so contrary to the weight of the evidence so as to

shock the conscience and justify a reversal of the jury’s verdict.” Id. at 23.

We conclude that the record supports the court’s analysis and, thus, that the

court did not abuse its discretion in rejecting Appellant’s challenge to the

weight of the evidence.

Finally, Appellant challenges the discretionary aspects of his sentence.

Appellant’s Br. at 14-25. Challenges to the discretionary aspects of sentence

are not appealable as of right. Commonwealth v. Leatherby, 116 A.3d 73,

83 (Pa. Super. 2015). Rather, we must determine if Appellant invoked our

jurisdiction, which requires us to consider (1) whether Appellant filed a timely

notice of appeal; (2) whether Appellant preserved the issue at sentencing or

in a motion to reconsider and modify sentence; (3) “whether Appellant’s brief

includes a concise statement of the reasons relied upon for allowance of

appeal” pursuant to Pa.R.A.P. 2119(f); and (4) “whether the concise

statement raises a substantial question that the sentence is appropriate under

the [S]entencing [C]ode.” Commonwealth v. Carrillo-Diaz, 64 A.3d 722,

725 (Pa. Super. 2013) (citation omitted).

We recognize that Appellant timely appealed, preserved his sentencing

challenge in his post-sentence motion, and included a Rule 2119(f) statement

in his brief. Accordingly, we next address whether he has presented a

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substantial question for our review. “A substantial question exists only when

the appellant advances a colorable argument that the sentencing judge’s

actions were either: (1) inconsistent with a specific provision of the Sentencing

Code; or (2) contrary to the fundamental norms which underlie the sentencing

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

(citation and internal quotation marks omitted).

Appellant posits that his “sentence was ‘excessive’ in nature considering

[his] age, the mitigating factors provided to the court, and the fact that if the

alleged victims made these claims when [they] supposedly occurred

[Appellant] would have been treated as a juvenile as opposed to an adult.”

Appellant’s Br. at 12. Specifically, Appellant asserts that “the sentencing court

abused its discretion by failing to consider [his] rehabilitative needs, failing to

give due consideration to his background, and considering the protection of

the public.” Id. at 14. Based upon these claims, we conclude that Appellant

raises a substantial question. See Commonwealth v. Banniger, 303 A.3d

1085, 1096 (Pa. Super. 2023) (concluding that “an excessive sentence claim—

in conjunction with an assertion that the court failed to consider mitigating

factors—raises a substantial question.”) (citation omitted).

It is well-established 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. Bowen,

55 A.3d 1254, 1263 (Pa. Super. 2012) (citation omitted). To demonstrate an

abuse of discretion, the defendant must “establish, by reference to the record,

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that the sentencing court ignored or misapplied the law, exercised its

judgment for reasons of partiality, prejudice, bias[,] or ill will, or arrived at a

manifestly unreasonable decision.” Commonwealth v. Antidormi, 84 A.3d

736, 760 (Pa. Super. 2014) (citation omitted).

An appellate court will affirm a sentence imposed within the guidelines

unless it finds that “the case involves circumstances where the application of

the guidelines would be clearly unreasonable[.]” 42 Pa.C.S. § 9781(c)(2). In

reviewing a sentence, we consider the following: “(1) [t]he nature and

circumstances of the offense and the history and characteristics of the

defendant[;] (2) [t]he opportunity of the sentencing court to observe the

defendant, including any presentence investigation[;] (3) [t]he findings upon

which the sentence was based[; and] (4) [t]he guidelines promulgated by the

commission.” Id. at § 9781(d).

In imposing a sentence, the trial court must 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.” Id. at § 9721(b). “The court shall impose a sentence of total

confinement” where the court concludes that total confinement is “necessary

because:”

(1) there is undue risk that during a period of probation or partial confinement the defendant will commit another crime;

(2) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or

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(3) a lesser sentence will depreciate the seriousness of the crime of the defendant.

Id. at § 9725.

Where, as here, a PSI exists, we presume “that the sentencing judge

was aware of relevant information regarding the defendant’s character and

weighed those considerations along with mitigating statutory factors.”

Commonwealth v. Watson, 228 A.3d 928, 936 (Pa. Super. 2020) (citation

omitted). Finally, we defer to the sentencing court’s assessment of the

sentencing factors as it is “in the best position to measure factors such as the

nature of the crime, the defendant’s character, and the defendant’s display of

remorse, defiance, or indifference.” Commonwealth v. Summers, 245 A.3d

686, 696 (Pa. Super. 2021) (citation omitted).

Appellant contends that the trial court abused its discretion in imposing

a manifestly excessive sentence and failing to weigh properly the following

three factors: (1) “the fact that he was a juvenile when these crimes were

committed,” (2) “that he was a victim of a similar crime during the same time

period,” and (3) “that he was completely crime free for more than twenty []

years after this occurred.” Appellant’s Br. at 20. He argues that the court

should have imposed a sentence in the mitigated range to account for the fact

that he was being sentenced at age 45 for crimes he committed when he was

as young as 14, “where the delay in prosecution was through no fault of his

own and resulted in him losing the protections of the Juvenile Act.” Id. He

emphasizes “that the distinctions between adults and juveniles are particularly

relevant in the area of sexual offenses, where many acts of delinquency

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involve immaturity, impulsivity, and sexual curiosity rather than hardened

criminality.” Id. at 21 (invoking the rationale of Miller v. Alabama, 567 U.S.

460 (2012)). Appellant posits that he “would have not done a single day in

prison had these issues come to light between 1992 and 1996” and instead

“would have received the rehabilitative nature of the juvenile system” to

address his own trauma. Id. at 22, 24.

We reject Appellant’s claims. As set forth above, the sentencing court,

with the benefit of a PSI, imposed a standard range sentence after thoroughly

considering Appellant’s mitigating factors, including that Appellant was a

juvenile at the time of the events, that he otherwise had a crime-free record,

and that he had experienced trauma himself. The court balanced those factors

against the age of the two victims as well as the “nature of the offenses.” Trial

Ct. Op. at 14. In so doing, the court explained that while “it may have taken

20 years for the victims’ cases to be brought to court, the victims had to live

with the trauma for 20 years while the Appellant was free to live his life without

any consequences of his actions.” Id. We refuse to reweigh the court’s

assessment of the sentencing factors and, instead, conclude that the court did

not abuse its discretion in sentencing Appellant.5

As we reject all of Appellant’s claims, we affirm the judgment of

sentence. ____________________________________________

5 While Appellant does not specifically claim that he should have been subject

to the Juvenile Act, rather than being tried and sentenced as an adult, we observe that Pennsylvania courts have repeatedly foreclosed such a claim. Commonwealth v. Torres, 303 A.3d 1058, 1062 (Pa. Super. 2023).

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Judgment of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 04/16/2026

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