Com. v. Faison, W., 297 A.3d 810

Background

On March 14, 2019 Darby police interrupted Walter Faison attempting to sexually assault his ex‑girlfriend (Victim) in her apartment lobby; Victim’s pants were pulled down and an officer observed Faison on his knees behind her. Faison was arrested and charged with attempted rape, attempted sexual assault, two counts of indecent assault, stalking, resisting arrest, institutional vandalism, and related counts.
The Commonwealth sought pretrial admission of prior bad acts involving the same victim (threats/terroristic‑threat convictions, stalking reports, a prior alleged 2017 sexual assault); the court granted admission in part under Pa.R.E. 404(b) with limiting instructions.
Faison moved to dismiss under Pa.R.Crim.P. 600 for a speedy‑trial violation; the court excluded defense continuances and excused COVID‑era delay, denied dismissal, and the case proceeded to jury trial in Sept. 2021.
The jury convicted Faison of attempted rape, indecent assault, stalking (among other counts); terroristic threats were acquitted.
Sentencing (Feb. 11, 2022) imposed mandatory minimum Tier III SORNA exposure and a combined aggregate term of 340–684 months (25–50 years mandatory minimum for attempted rape plus additional consecutive and concurrent terms).
Faison appealed raising seven claims: Rule 600 dismissal, admission of prior bad‑acts evidence, sufficiency for attempted rape, grading of stalking, merger of indecent assault with attempted rape, discretionary aspects/legality of sentence, and SORNA Subchapter H constitutionality/stay.

Issues

Issue	Plaintiff's Argument (Commonwealth)	Defendant's Argument (Faison)	Held
1) Rule 600 speedy‑trial denial	Time was properly excluded for defense continuances and the COVID judicial emergency; Commonwealth exercised due diligence.	Court misallocated a November 2019 continuance to defense and COVID delay is inapplicable because a Rule 600 problem existed before the emergency.	Affirmed — defense continuances and COVID judicial‑emergency excusable delay extended the run date; no Rule 600 violation.
2) Admission of prior bad acts under Pa.R.E. 404(b)	Prior acts were admissible to prove intent, motive, course of conduct and to rebut consent; limiting instructions were given.	The Commonwealth introduced cumulative, prejudicial prior‑acts evidence (including a 2017 rape allegation and many texts) beyond notice and in violation of Rules 403/404(b).	Affirmed — trial court did not abuse discretion; evidence was relevant to intent/consent and probative value outweighed prejudice; objections largely waived and limiting instructions provided.
3) Sufficiency of evidence for attempted rape	Evidence (victim testimony, officer observation, texts, defendant statements) established specific intent and a substantial step (pinning and pulling down pants).	No substantial step toward penetration (defendant was clothed and kneeling) and court improperly relied on improperly admitted prior assault.	Affirmed — viewed in light most favorable to Commonwealth, jury could infer intent and substantial step; prior‑acts evidence not necessary to sustain conviction.
4) Stalking grade (felony vs misdemeanor)	Stalking elevation to third‑degree felony was proper because Faison had prior convictions of terroristic threats against the same victim, which qualify as "crimes of violence" under §2709.1(c)(2).	Terroristic threats is not an enumerated qualifying offense and is not a statutory "crime of violence," so felony grading is improper.	Affirmed — terroristic‑threat convictions (threats to kill the victim) qualify as prior crimes of violence for grading; felony sentence lawful.
5) Merger of attempted rape and indecent assault	The crimes did not both constitute the same statutory elements and thus need not merge; convictions may stand concurrently.	Indecent assault and attempted rape arose from the same act and should have merged for sentencing.	Affirmed — statutory elements differ (indecent assault requires touching; attempted rape requires specific intent to have intercourse), so no merger.
6) Discretionary aspects of sentencing (consecutive terms, individualization)	Sentencing court had pre‑sentence material and was constrained by mandatory minimums; court presumed to have considered §9721 factors.	Aggregate sentence (de facto life) was excessive; court failed to explain or individualize and misapplied sentencing factors.	Affirmed — defendant failed to raise a substantial question; mandatory minimums limited discretion and record (PSI, sentencing proceedings) supports exercise of discretion.
7) SORNA Subchapter H constitutionality / stay	Subchapter H remains presumptively constitutional; no present judicial invalidation by PA Supreme Court.	Stay registration requirements pending Supreme Court resolution in Torsilieri because Faison raised the same constitutional challenges.	Denied — no statewide invalidation; stay unnecessary now and relief can be sought later if Supreme Court rules for invalidity.

Key Cases Cited

Commonwealth v. Horne, 89 A.3d 277 (Pa. Super. 2014) (Rule 600 standard and balancing societal interests with speedy‑trial rights)
Commonwealth v. Carl, 276 A.3d 743 (Pa. Super. 2022) (mechanical run date, excludable time, adjusted and final run‑date computation under Rule 600)
Commonwealth v. Baldwin, 985 A.2d 830 (Pa. 2009) (statutory merger test for sentencing: single act and element inclusion)
Commonwealth v. Edwards, 256 A.3d 1130 (Pa. 2021) (merger analysis begins and ends with statutory elements)
Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988) (presumption that sentencing court considered PSI and relevant factors)
Commonwealth v. Claypool, 495 A.2d 176 (Pa. 1985) (Commonwealth not required to omit relevant evidence; jury decides weight/credibility)
Commonwealth v. Hairston, 84 A.3d 657 (Pa. 2014) (cautionary jury instruction can ameliorate prejudicial effect of other‑acts evidence)
Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020) (discussion and remand on constitutionality challenges to Revised Subchapter H of SORNA)