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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DANIEL THOMAS SEARLE,
Appellant No. 833 MDA 2014
Appeal from the Judgment of Sentence April 2, 2014
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000386-2014
BEFORE: BOWES, PANELLA, and PLATT,* JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 15, 2014
Daniel Thomas Searle appeals from the judgment of sentence of time
served (seventy-five days) to twelve months incarceration imposed by the
court after he pled guilty to simple assault. We affirm.
Appellant pled guilty to simple assault on April 2, 2014, after he was
charged with aggravated assault and simple assault following an attack on
his wife. The assault occurred while Appellant was on parole for a prior
simple assault conviction for choking his wife. In a statement to police,
Appellant’s wife set forth that this was not the first time he had hit her. She
stated that this incident resulted in him hitting her across the face, slamming
her body down, hitting her more times in the face, and then strangling her.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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He continued his assault by throwing sports balls at her and attempting to
strangle his wife again. Appellant, according to his wife’s statement, then
slammed her against the wall several times. A police video also existed
where Appellant admitted to kicking his wife.
As a result of his plea, the court entered a no-contact order with his
wife. However, despite the repeated abuse at the hands of her husband,
Appellant’s wife asked that the no-contact provision be removed so that they
could reside together. Accordingly, counsel filed a timely motion to modify
Appellant’s sentence on April 11, 2014. The court conducted a hearing, and
Appellant’s wife testified. She asked that the no-contact order be lifted,
indicated that she opposed his prosecution, and claimed that she
exaggerated the incident. The trial court, however, declined to remove the
no-contact provision.
This appeal ensued. The trial court directed Appellant to file and serve
a concise statement of errors complained of on appeal. Appellant complied,
and the trial court authored its opinion. The matter is now ready for this
Court’s review. Appellant’s sole issue on appeal is, “Did the [c]ourt err by
denying Daniel Searle’s [m]otion to [m]odify [s]entence where he asked that
no contact provisions re: his wife be removed, and when testimony was
offered at a hearing that such a result was requested by not only the
Defendant but also his wife?” Appellant’s brief at 4.
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Appellant’s appeal is from the discretionary aspects of his sentence. To
adequately preserve a discretionary sentencing claim, the defendant must
present the issue in either a post-sentence motion, or raise the claim during
the sentencing proceedings. Commonwealth v. Cartrette, 83 A.3d 1030,
1042 (Pa.Super. 2013) (en banc). Further, the defendant must “preserve the
issue in a court-ordered Pa.R.A.P. 1925(b) concise statement and a
Pa.R.A.P. 2119(f) statement.” Id. Importantly, “There is no absolute right
to appeal when challenging the discretionary aspect of a sentence.” Id.
“[A]n appeal is permitted only after this Court determines that there is a
substantial question that the sentence was not appropriate under the
sentencing code.” Id.
Appellant preserved his issue in his motion to modify his sentence and
his Pa.R.A.P. 1925(b) statement. However, he has failed to include a
Pa.R.A.P. 2119(f) statement in his brief, despite the trial court indicating in
its opinion that his issue pertained to the discretionary aspects of his
sentence. Nonetheless, the Commonwealth has not objected to the absence
of a Pa.R.A.P. 2119(f) statement. Accordingly, we do not find waiver on that
basis. See Commonwealth v. Stewart, 867 A.2d 589 (Pa.Super. 2005).
Further, we agree with both the Commonwealth and Appellant that his issue
does present a substantial question for our review. See Commonwealth v.
Koren, 646 A.2d 1205 (Pa.Super. 1994). Nevertheless, we find that
Appellant is entitled to no relief.
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Appellant argues that because his wife is not a minor nor mentally
challenged and did not request court protection, the no-contact order was an
abuse of discretion. The Commonwealth responds that the no-contact
condition is reasonable and necessary for Appellant’s rehabilitation since he
has been convicted of abusing his wife in the past. In the Commonwealth’s
view, the trial court’s order “is in accord with the protection of the victim,
the gravity of the offense (attempted strangulation), and the rehabilitative
needs of the defendant.” Commonwealth’s brief at 4. We agree.
Victims do not pursue charges in this Commonwealth. Rather, in order
to protect not only a victim, but the community, a prosecution is instituted
by the government. Accordingly, a victim of spousal abuse does not decide
whether to prosecute. Spousal abuse is a serious problem, and a crime.
That Appellant’s wife wishes to remove the no-contact provision does not
ipso facto result in the court erring in declining to remove the sentencing
condition.
Here, the court reasoned that Appellant was convicted of assaulting his
wife and “admitted to physically abusing her on at least two prior occasions.”
Trial Court Opinion, 6/3/14, at 5. It opined that the no-contact condition
was needed to guarantee the victim’s safety and was consistent with public
protection. The sentencing court noted that removing the provision could
create “a potentially dangerous environment.” Id. It further found
Appellant’s wife’s testimony at the sentence modification hearing wholly
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incredible. We find the court’s statement that it “has an obligation to afford
[the victim] protection from her abuser even when she is unable or unwilling
to recognize the danger he poses[,]” to be sound. Id. at 6.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2014
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