Com. v. Gensiak, J.

J-S14024-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

JOAN GENSIAK

Appellant No. 677 MDA 2015

Appeal from the Judgment of Sentence October 16, 2014
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0002134-2013

BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J. FILED APRIL 07, 2016

Appellant, Joan Gensiak, appeals from the judgment of sentence

entered October 16, 2014, in the Court of Common Pleas of Lackawanna

County, following her guilty plea to Neglect of a Care-Dependent Person,

graded as a felony of the first degree, and Endangering the Welfare of

Children, graded as a felony of the third degree.1 We affirm the convictions,

but vacate the judgment of sentence and remand for resentencing.

The trial court summarized the history of this case as follows.

On March 19, 2013, Robert Gensiak (hereinafter “Robert”),
a thirty-two (32) year old male with Down Syndrome, who was
the brother of [the Appellant,] was admitted to the hospital

____________________________________________

*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 2713 and 4304(a)(1), respectively.
J-S14024-16

because he was semi-responsive and unable to stand up.
[Appellant] resided in the home with Robert.

At the preliminary hearing, David Utter testified that he
was the lead emergency room technician at the hospital where
Robert was admitted. He testified Robert was covered in a rash,
and was emitting a strong, foul smelling odor. He testified that
Robert weighed sixty[-]nine (69) pounds. While at the hospital,
Robert went into cardiac arrest and passed away on March 20,
2013.

The Lackawanna County District Attorney’s Officer charged
[Appellant] with four (4) charges related to her brother’s death
and the endangerment of her two (2) year old daughter, who
also resided in the home. [Appellant’s] mother, Susan Gensiak,
and [Appellant’s] sister, Rebekah Gensiak, were also charged in
relation to Robert Gensiak’s death. [Appellant] was charged with
Murder of the Third Degree …, Neglect of Care-Dependent Person
..., Involuntary Manslaughter …, and Endangering Welfare of
Children-Parent/Guardian/Other Commits Offense….

On May 8, 2014, all three (3) co-defendants pled guilty
before [the trial court]. [Appellant] entered a guilty plea to
[Neglect of Care-Dependent Person and Endangering the Welfare
of Children.] At the time of the guilty plea, [the trial court]
engaged in an extensive colloquy of the [Appellant]. The
[Appellant] … stated that she had the opportunity to go through
the four[-]page guilty plea colloquy with her attorney. She
further stated that her lawyer answered any and all questions
about the guilty plea colloquy and that she had an understanding
of her guilty plea and what she was doing. She also conceded
that there was no agreement between herself, her attorneys and
the District Attorney’s Office regarding sentencing. She
additionally acknowledged that she understood the [c]ourt was
not a party to any agreement she may have had regarding
sentencing. When questioned, she answered she knew she had
the right to a jury trial, and understood her attorney’s would
have the opportunity to cross-examine any witnesses called by
the Commonwealth and to object to any evidence the District
Attorney’s Office sought to have admitted to trial.

During the colloquy of the [Appellant], the Assistant
District Attorney read the allegations of the criminal information
for both crimes into the record. [Appellant accepted
responsibility and admitted to committing the crimes with which

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J-S14024-16

she had been charged.] … [Appellant] stated that she was freely
and voluntarily entering into this plea. … Accordingly, [the trial
court] found [Appellant] entered into the plea knowingly, freely
and voluntarily.

Prior to sentencing, both attorneys for the [Appellant], on
July 21, 2014 and August 26, 2014, respectively, filed separate
motions for the appointment of a psychiatrist to aid in the
sentencing of the [Appellant]. [Appellant’s] attorneys requested
that a psychiatrist be appointed at the rate of five hundred
dollars ($500.00) per hour with a cap of five thousand dollars
($5,000.00). [The court] granted [Appellant’s] request for a
psychiatrist, but capped the available amount at two thousand
dollars ($2,000.00). Defense Counsel declined to use the
psychiatrist, stating in a letter to the [c]ourt that two thousand
dollars ($2,000.00) was an insufficient amount.

Trial Court Opinion, 6/2/15 at 1-4.

The court sentenced Appellant to a term of six to fifteen years’

imprisonment. Thereafter, Appellant filed a post-sentence motion to

withdraw her guilty plea as well as a motion for reconsideration of sentence.

The trial court denied Appellant’s motions following a hearing. This timely

appeal followed.

Appellant raises the following issues for our review.

I. Whether, where Appellant was an [indigent], mentally-ill
person, charged with third degree murder, the lower court
erred in [failing to appoint] a mental health expert to aid
Appellant’s court-appointed counsel at sentencing?

II. Whether, where the Commonwealth misled Appellant into
pleading guilty, by telling her that her identically-situated
co-defendant was pleading guilty to an identical offense,
an untrue fact, the lower court erred in re[f]using to allow
Appellant to withdraw her guilty plea and proceed to trial?

III. Whether, by failing to articulate sufficient grounds on the
record and by failing to properly weigh the mitigating
circumstances present and by sentencing Appellant in a
wildly disproportionate manner to that of her identically

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J-S14024-16

situated co[-]defendant, the lower court erred in
sentencing Appellant outside of the aggr[a]vated range?

Appellant’s Brief at 7 (unnecessary capitalization omitted).

Appellant first contends that the trial court erred when it allegedly

denied her motion for the appointment of a psychiatric expert to assist at

sentencing. Although Appellant concedes that the trial court agreed to

provide funds for an expert, she argues that the court’s decision to provide

less money than the $5,000.00 she requested amounted to a tacit denial of

Appellant’s motion.

Our standard of review, as it relates to the appointment of a defense

expert in a criminal matter, is as follows.

The provision of public funds to hire experts to assist in the
defense against criminal charges is a decision vested in the
sound discretion of the court and a denial thereof will not be
reversed absent an abuse of that discretion.

Commonwealth v. Cannon, 954 A.2d 1222, 1226 (Pa. Super. 2008)

(citation omitted). “[T]he Commonwealth is not obligated to pay for the

services of an expert simply because a defendant requests one.” Id. at 1225

(citation omitted).

Appellant next claims that the trial court erred when it denied her

post-sentence motion to withdraw her guilty plea. We note that,

[p]ost-sentence motions for withdrawal are subject to
higher scrutiny since courts strive to discourage entry of
guilty pleas as sentence-testing devices. A defendant
must demonstrate that manifest injustice would result if
the court were to deny his post-sentence motion to
withdraw a guilty plea. Manifest injustice may be
established if the plea was not tendered knowingly,

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J-S14024-16

intelligently, and voluntarily. In determining whether a
plea is valid, the court must examine the totality of
circumstances surrounding the plea. A deficient plea does
not per se establish prejudice on the order of manifest
injustice.

Commonwealth v. Broaden, 980 A.2d 124, 129 (Pa. Super. 2009)

(internal quotes and citations omitted).

To be valid, a guilty plea must be knowingly, voluntarily
and intelligently entered. [A] manifest injustice occurs when a
plea is not tendered knowingly, intelligently, voluntarily, and
understandingly. The Pennsylvania Rules of Criminal Procedure
mandate pleas be taken in open court and require the court to
conduct an on-the-record colloquy to ascertain whether a
defendant is aware of his rights and the consequences of his
plea. Under [Pa.R.Crim.P.] Rule 590, the court should confirm,
inter alia, that a defendant understands: (1) the nature of the
charges to which he is pleading guilty; (2) the factual basis for
the plea; (3) he is giving up his right to trial by jury; (4) and the
presumption of innocence; (5) he is aware of the permissible
ranges of sentences and fines possible; and (6) the court is not
bound by the terms of the agreement unless the court accepts
the plea. The reviewing Court will evaluate the adequacy of the
plea colloquy and the voluntariness of the resulting plea by
examining the totality of the circumstances surrounding the
entry of that plea. Pennsylvania law presumes a defendant who
entered a guilty plea was aware of what he was doing, and the
defendant bears the burden of proving otherwise.

Commonwealth v. Prendes, 97 A.3d 337, 352 (Pa. Super. 2014), appeal

denied, 105 A.3d 736 (Pa. 2014) (internal quotes and citations omitted).

We have reviewed Appellant’s first two issues raised on appeal, along

with the briefs of the parties, the certified record and the applicable law.

Having determined that the Honorable Margaret A. Bisignani Moyle’s June 2,

2015 opinion ably and comprehensively disposes of these issues, with

appropriate reference to the record and without legal error, we affirm

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J-S14024-16

Appellant’s first two issues on the basis of that opinion. See Trial Court

Opinion, 6/2/15 at 6-12.

We write independently to address Appellant’s final issue, which

challenges the discretionary aspects of her sentence. Preliminarily, we must

determine whether Appellant has the right to seek permission to appeal the

sentencing court’s exercise of its discretion. See Commonwealth v.

Moury, 992 A.2d 162, 170 (Pa. Super. 2010). When an appellant challenges

the discretionary aspects of his sentence, we utilize a four-part test to

determine:

(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).

Id. (internal citations omitted).

Here, Appellant challenged her sentence in a post-sentence motion

and filed a timely appeal. Appellant’s appellate brief also contains the

requisite Rule 2119(f) concise statement. We must now decide whether

Appellant’s challenge to the discretionary aspects of her sentence raises a

substantial question.

“A substantial question will be found where an appellant advances a

colorable argument that the sentence imposed is either inconsistent with a

specific provision of the Sentencing Code or is contrary to the fundamental

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J-S14024-16

norms which underlie the sentencing process.” Commonwealth v. Zirkle,

107 A.3d 127, 132 (Pa. Super. 2014), appeal denied, 117 A.3d 297 (Pa.

2015) (citation omitted). “[W]e cannot look beyond the statement of

questions presented and the prefatory 2119(f) statement to determine

whether a substantial question exists.” Commonwealth v. Christine, 78

A.3d 1, 10 (Pa. Super. 2013), affirmed, 125 A.3d 394 (Pa. 2015) (citation

omitted).

Appellant claims in her Rule 2119(f) statement that the trial court

improperly imposed a sentence outside of the aggravated range of the

sentencing guidelines. A claim that the sentencing court imposed a sentence

outside of the guidelines without specifying sufficient reasons presents a

substantial question for our review. See Commonwealth v. Holiday, 954

A.2d 6, 10 (Pa. Super. 2008).

Our review of the sentencing transcript reveals that although the

sentencing court announced that it was imposing an aggravated range

sentence for the offense of Neglect of a Care-Dependent Person, the court

proceeded to sentence Appellant outside of the sentencing guidelines. See

N.T., Sentencing, 10/16/15 at 21. The “Pennsylvania Commission on

Sentencing Guideline Sentencing Form” contained within the certified record

indicates that that offense carried an offense gravity store of ten, see also

204 Pa.Code §§ 303.3 and 303.15, and that Appellant had a prior record

score of zero. The sentencing guidelines therefore provide for a standard

range sentence of 22 to 36 months imprisonment, with an aggravated range

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J-S14024-16

sentence of 36 to 48 months imprisonment. See id. at § 303.16(a). The trial

court’s sentence of five to ten years’ imprisonment exceeded the guideline

range.

“In sentencing outside of the guidelines, the court must demonstrate

that it understands the sentencing guidelines ranges.” Commonwealth v.

Garcia–Rivera, 983 A.2d 777, 780 (Pa. Super. 2009). The Sentencing Code

specifies that “in every case where the court imposes a sentence ... outside

the guidelines adopted by the Pennsylvania Commission on Sentencing ...

the court shall provide a contemporaneous written statement of the reason

or reasons for the deviation from the guidelines.” 42 Pa.C.S.A. § 9721(b).

Section 9781(c)(1) of the Sentencing Code makes clear that “the appellate

court shall vacate the sentence and remand the case to the sentencing court

with instructions if it finds [that] the sentencing court purported to sentence

within the sentencing guidelines but applied the guidelines erroneously.”

Because the record in the instant case does not indicate that the trial

court properly considered the sentencing guidelines, and it appears that the

trial court erroneously believed it was sentencing Appellant within the

sentencing guidelines, when it in fact sentenced Appellant beyond the

guidelines, we are constrained to vacate the judgment of sentence and

remand for resentencing. See id. See also Commonwealth v. Byrd, 657

A.2d 961 (Pa. Super. 1995) (vacating the judgment of sentence where the

sentencing court failed to set forth the permissible range of sentences under

the guidelines, and provided reasons on the record to support what it

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J-S14024-16

believed was a sentence in the aggravated range, while actually sentencing

the appellant outside of the guidelines without providing a contemporaneous

statement of its reasons for such deviation). As our decision upsets the trial

court’s sentencing scheme, we must vacate the entire judgment of sentence

and remand for resentencing.2 See generally Commonwealth v. Tanner,

61 A.3d 1043, 1048 (Pa. Super. 2013).

Convictions affirmed. Judgment of sentence vacated. Case remanded

for resentencing. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/7/2016

____________________________________________

2
Due to our disposition of this issue, we decline to address Appellant’s
additional claim that the sentencing court failed to adequately explain the
disparity between Appellant’s sentence and that of her co-defendant,
Rebekah Gensiak.

-9-
 Circulated 03/17/2016 03:36 PM

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CLERK OF JUDICJAL
RECO'RDS CRIMHHiL
DIVISION
COMM. OF PENNSYLVANIA : 1N[llr~,co;µRT:rPF2~9¥MON
: ~~;A~l't)p 'LA~K!A WA~A
:COUNTY
vs.
: CRIMINAL DIVISION

JOAN GENSIAK : 2013 CR 2134

MEMORANDUM OPINION PURSUANT TO Pa. R. A. P. 1925(a)

BISIGNANI MOYLE, J.
11
I I. INTRODUCTION
I The following Opinion, pursuant to the requirements under Pa. R.A.P.

I 1925(a), addresses the four (4) issues raised by Defendant/Appellant Joan

Gensiak in her Statement of Errors Complained of on Appeal pursuant to

Pa. R.A.P. 1925(b).

II. FACTUAL/PROCEDURALHISTORY

On March 19, 2013, Robert Gensiak (hereinafter "Robert"), a thirty-two

(32) year old male with Down Syndrome, who was the brother of the

Defendant, Joan Gensiak (hereinafter "Defendant" or "Appellant") was

admitted to the hospital because he was semi-responsive and unable to stand up.

N.T. 9/27/13 at 113.Q. Defendant resided in the home with Robert. N.T. 9/27/13

at p. 46.

At the preliminary hearing, David Utter testified that he was the lead

emergency room technician at the hospital where Robert was admitted. He

testified Robert was covered in a rash, and was emitting a strong, fou~ smelling

1
I
I
odor. N.T. 9/27/13 at p. 46. He· testified that Robert weighed sixty nine (69)

pounds. N.T. 9/27/13 at p. 53. While at the hospital, Robert went into cardiac

arrest and passed away on March 20, 2013. N.T. 9/27/13 at p. 56.

The Lackawanna County District Attorney' s Office charged Defendant,

Joan Gensiak, with four (4) charges related to her brother's death and the

endangerment of her two (2) year old daughter, who also resided in the home.

Defendant's mother, Susan Gensiak, and Defendant's sister, Rebekah Gensiak,

were also charged in relation to Robert Gensiak's death. Defendant was charged

with Murder of the Third Degree in violation of Title 18 Pa. C.S.A. § 2502,

Neglect of Care-Dependent Person, in violation of Title 18 Pa. C.S.A. § 2713,

Involuntary Manslaughter, in violation of Title 18 Pa. C.S.A. § 2504, and
d Endangering Welfare of Children-Parent/Guardian/Other Conunits Offense, in
11
i
l violation of Title 18 Pa. C.S.A. 4304(a)(l).

On May 8, 2014, all three (3) co-defendants pled guilty before this Court.

Defendant Joan Gensiak entered a guilty plea to one (1) count of Neglect of

Cate-Dependent Person, graded as a felony of the first degree, in violation of

Title 18 Pa. C.S.A § 2713 and one (1) count of Endangering Welfare of

Children, graded as felony of the third degree, in violation of Title 18 Pa. C.S.A

§ 4304. At the time of the guilty plea, this Court engaged in an extensive

colloquy of the Defendant.1 The Defendant, upon this Court's questioning,

stated that she had the opportunity to go through the four page guilty plea

colloquy with her attorney. N.T. 5/18/14 at p. 5. She further stated that her

I
Defendant's entire guilty plea colloquy by this Court can be found from pages three (3)
through twenty-four (24) in the May 8, 2014 transcript.

2
11

!
lawyer answered any and all questions about the guilty plea colloquy and that

she had an understanding of her guilty plea and what she was doing. N.T.

5/18/14 at p. 6, 13. She also conceded that there was no agreement between

herself, her attorneys and the District Attorney's Office regarding sentencing.

N.T. 5/18/14 atp. 16. She additionally acknowledged that she understood the

Court was not a party to any agreement she may have had regarding sentencing.

N.T. 5/18/14 at p. 16. When questioned, she answered she knew she had the

right to a trial by jury, and understood her attorneys would have the opportunity

to cross-examine any witnesses called by the Commonwealth and to object to

any evidence the District Attorney's Office sought to have admitted to trial.

N.T. 5/18/14 at p. 18.

During the colloquy of the Defendant, the Assistant District Attorney read

the allegations of the criminal information for both crimes into the record. After

the Assistant District Attorney read the allegations regarding the charge of

Neglect of Care-Dependent Person, Defendant responded that she did in fact

commit this crime, stating "I should have done more and .... yes.11 N.T. 5/18/14

at p. 22. The Assistant District Attorney then read the allegations regarding the

charge of Endangering the Welfare of a Child. N.T. 5/18/14 at p. 23. She

admitted that she did in fact commit that crime and she "should have done more

with her also." N.T. 5/18/14 at p. 23. Defendant stated that she was freely and

voluntarily entering into this plea. N.T. 5/18/14 at p. 23. Her attorneys stated

that in their opinion, the Defendant was entering into the plea freely and

3
,,
I

voluntarily, N.T. 5/18/14 at p. 24. Accordingly, this Court found Defendant

entered into the plea knowingly, freely and voluntarily. N.T. 5/18/14 at p. 24.

Prior to sentencing, both attorneys for the Defendant, on July 21, 2014 and

August 26, 2014, respectively, filed separate motions for the appointment of a

psychiatrist to aid in the sentencing of the Defendant. Defendant's attorneys

requested that a psychiatrist be appointed at a rate of five hundred dollars

($500.00) per hour with a cap of five thousand dollars ($5,000.00). This Court

granted Defendant's request for a psychiatrist, but capped the available amount

at two thousand dollars ($2,000.00). Defense Counsel declined to use the

psychiatrist, stating in a letter to the Court that two thousand dollars ($2,000.00)

was an insufficient amount.

On October 16, 2014, this Court sentenced all three co-defendants. The

Defendant was sentenced to six (6) years to fifteen (15) years in a State

Correctional Institution. N.T. 10/16/14 at p. 21. On October 23, 2014, she filed

a Motion to Withdraw Plea of Guilty as well as a Motion for Reconsideration of

Sentence. On November 3, 2014, the Commonwealth filed an Answer to

Defendant's Motion to Withdraw Guilty Plea. On December 17, 2014, this

Court held a hearing on Defendant's Motions. Although she raised several

arguments in her Motion to Withdraw Guilty Plea, by the time of the heating,

she abandoned all but one (1) argument. N.T. 12/17/14 at p. 109. Namely, she

argued that she was not aware that her co-defendant, Rebekah Gensiak, pled

guilty to a misdemeanor charge of Neglect of Care-Dependent Person. Rather,

she was under the mistaken impression her sister pled to Neglect of Care-

4
!',j

Dependent Person graded as a felony. Defendant's Motion for Reconsideration
i1
I overlapped with her Motion to Withdraw her Guilty Plea, only setting forth one
11
I additional argument. She raised the disparity between her sentence and the

sentence of her sister co-defendant, arguing the range of prison terms were too

disparate. On April 8, 2015, this Court issued an Order and an Opinion denying

Defendant's Motions.

On April 13, 2015, Defendant filed her Statement of Matters

Complained of on Appeal Pursuant to Rule 1925(b). Defendant raised the

following four issues:

1. The trial court erred in refusing to appoint an appropriate Psychiatric
and/or Psychological Expert Witness to assist Appellant and
Appellant's Counsel at Sentencing in this matter.

2. The trial court erred in refusing to allow Appellant to withdraw her
guilty plea after sentencing despite the fact that the Commonwealth
made material misstatements to Appellant in inducing her plea in
this matter.

3. The trial court erred in sentencing Appellant in the aggravated range
in this case. The court failed to articulate sufficient and/or
acceptable grounds for an aggravated range sentence on the record.

4. The trial comi abused its discretion in sentencing Appellant.
Specifically, the court sentenced Appellant in a wildly
disproportionate manner to her co-defendant, Rebekah Gensiak who
was similarly situated to her, without adequate reason for doing so.

Each of Defendant's four (4) issues complained of on appeal is discussed

below.

5
 III. DISCUSSION

A. Appointment of an Appropriate Psychiatric and/or Psychological
Expert Witness

a. Defendant's Argument

Defendant asserts, on appeal, as follows:

(a) The trial court erred in refusing to appoint an appropriate
Psychiatric and/qr Psychological Expert· Witness to assist
Appellant and Appellant's Counsel at Sentencing in this
matter.

b. Applicable Law

"Under the law of Pennsylvania, as in a majority of states, the

appointment of an expert witness or an investigator to assist in the preparation

of a defense is vested in the sound discretion of the trial court." Comm. v.

Gel01mo, 475 A.2d 765, 769 (Pa. Super. 1984). "There is no constitutional

mandate, either federal or state, that experts be appointed at public expense to

assist in the preparation of a defense whenever requested by one accused of

crime." Id. citing United States ex rel. Smith v. Baldi. 344 U.S. 561, 568

(1953). "There is no obligation on the part of the Commonwealth to pay for the

services of an expert." Com. v. Cruter, 643 A.2d 61, 73 (1994) citing

Commonwealth v. Williams, 561 A.2d 714, 718 (1989). In Carter, the trial

court granted Defendant's request for a psychiatrist, but Defendant failed to use

the testimony of the psychiatrist during trial. The Carter Court held "the

appellant cannot now assert that he was prevented from presenting his case

where he failed to utilize the experts approved by the court." Carter, 643 A.2d

at 73.

6
11

c. Application

At the outset, this Court notes that the Court did not refuse to appoint a

psychiatrist or psychological expert to assist with sentencing. Instead, this

Court capped the total available funds at a reasonable amount ($2,000.00) to

allow the appointment of either a psychiatrist or psychological expert to assist

with sentencing. Defendant then chose to proceed without use of the two

thousand dollars ($2,000.00) to hire an expert and proceed directly to

sentencing.

"There is no is no obligation on the part of the Commonwealth to pay for

the services of an expert." Carter, 643 A.2d at 73 (1994) citing Williams. 561

A.2d at 718. However, this Court was willing to provide a reasonable amount

I of money for a psychiatrist or psychologist. This Court calculated a reasonable

amount for Defendant to use for a psychiatrist or psychologist and provided the

Defendant the opportunity to use that amount. The Defendant declined to use

that amount, and now is attempting to frame this Court's grant of two thousand

dollars ($2,000.00) as a "refusal refusing to appoint an appropriate psychiatric

and/or psychological expert witness."

Because this Court granted Defendant's request, even though this Court

had no obligation to do so, and Defendant chose not to use the expert,

Defendant's first matter complained of on appeal is without merit.

7
 B. · Refusal to Allow Appellant to Withdraw Guilty Plea After
Sentencing

a. Defendant's Argument

Defendant asserts, on appeal, as follows:

(b) The trial court erred in refusing to allow Appellant to
withdraw her guilty plea after sentencing despite the fact that
. the Commonwealth made material misstatements . to
Appellant in inducing her plea in this matter.

Defendant asserts that she should be allowed to withdraw her guilty plea

posHfntence because she was unaware that her sister and co-defendant,

Rebekah Gensiak, pled guilty to a misdemeanor. N.T. 12/17/14 at p. 10. This

issue formed the basis of Defendant's argument in her motion to withdraw

guilty .plea, for which this Court held a hearing. In order to frame Defendant's

argument more clearly, one must look at the procedural history of this case.

As stated above, Defendant, along with her mother, Susan Gensiak, and

sister, Rebekah Gensiak, were each charged with several criminal offenses

I
1 ·
I
related to the death of Robert Gensiak. Rebekah Gensiak cooperated with the

Commonwealth and testified at the preliminary hearing. N.T. 9/27/13 at p. 144-

200. At the preliminary hearing, the District Attorney asked Rebekah Gensiak,

"And did I ever offer you anything for your testimony today?" N.T. 9/27/13 at

~· Ms. Gensiak replied "[t]o plead to Neglect of Care-Dependent." N.T.

9/27/13 at p. 145.

On May 8, 2014, all three (3) co-defendants pled guilty before this Court.

Susan Gensiak pled guilty to Murder of the Third Degree in violation of Title

18 Pa. C.S.A § 2502(C). Defendant then pled, as aforestated, to one (1) count

8
of Neglect of Care-Dependent Person, graded as a felony of the first degree, in
I

violation of Title 18 Pa. C.S.A § 2713 and one (1) count of Endangering

Welfare of Children, graded 8;S felony of the third degree, in violation of Title

18 Pa. C.S.A § 4304. Finally, Rebekah Gensiak, in exchange for her

cooperation, pled to one (1) count of Neglect of a Care-Dependent Person,

graded as a misdemeanor of the first degree.

This Court sentenced Defendant, her mother; and her sister on October 16,

2014. On October 23, 2014, Defendant filed a Motion for Reconsideration and

a Motion for Withdrawal of Guilty Plea. Defendant's counsel argued that they

were .unaware, until after sentencing, that Rebekah Gensiak pled guilty to a

misdemeanor. N.T. 12/17/14 at p. 99. Defendant's counsel argued that when

Rebekah Gensiak stated that she was going to plea to Neglect of a Care-

Dependent Person, they assumed she was going to plea to that crime, graded as

a felony. A hearing was held on December 17, 2014, on Defendant's· Motion to

Withdraw Guilty Plea and Defendant's Motion for Reconsideration of

Sentence. At the hearing, Defendant's counsel argued that if they had known

that Rebekah Gensiak pled guilty to a misdemeanor, they would have advised

Defendant not to take the plea offer. N.T. 12/17/14 at p. 105. Defense counsel

reasoned the co-defendant's plea agreement would have undermined her

credibility as a witness during trial. N.T. 12/17/14 at p. 105.

( c) Applicable Law

When considering a petition to withdraw a guilty plea after sentencing, it is

well-established that "a showing of prejudice on the order of manifest injustice"

9
ii

I
11 is required before withdrawal is properly justified. Commonwealth v. Starr, 301

I A.2d 592, 595 (Pa. 1973). "A defendant is presumed to be aware of what he

'1 . was doing and the burden of proving involuntariness is squarely on him."
1,,
I Commonwealth v. Myers, 642 A.2d 1103, 1105 (Pa. Super. 1994) quoting

I' Commonwealth v. West 485 A.2d 490, 493(Pa. Super. 1984). The burden

placed on a defendant in such a motion increases significantly after sentencing.

Commonwealth v. English, 597 A.2d 122, 123 (Pa. Super. 1991). Post-

sentencing attempts to withdraw a guilty plea must sustain this more substantial

burden because of the recognition that a withdrawal of a guilty plea can be used

as a sentence-testing device. StalT, 301 A.2d at 594. "A demonstration of

manifest injustice requires a showing that the plea was involuntary or was

entered without knowledge of the charge.'' Commonwealth v. Warren, 453

A.2d 5, 6 (Pa. Super. 1982).

In Commonwealth v. Kephart, 594 A.2d 358, 360 (Pa. Super 1991), the

Pennsylvania Superior Court held that a court reviewing a post-sentence motion

to withdraw a guilty plea must examine the totality of the circumstances and

determine whether the plea was entered into involuntarily or without

knowledge of the chargers). In Kephart, the Defendant; who pied guilty to DUI,

Driving at an Unsafe Speed and Homicide by Vehicle, sought to withdraw his

guilty plea in light of newly discovered evidence that might have supported his

averment that another individual was driving at the time of the accident. In

Kephaii, the Defendant asserted that a woman witnessed the car being driven

by the decedent just prior to the accident and that the Commonwealth had this

10
 evidence and did not turn it over to him. Kephart, 594 A.2d at 360. At the

sentencing hearing, the witness stated she saw two males in the car and one of

them was bearded. Id. However, the witness testified that she could not

determine whether the bearded male was the driver or the passenger. Id. She

further stated that she never told the police investigator the bearded male was

driving. In addition, the police investigator testified that his notes from

interviewing the witness contained no reference to any statement regarding the

identity of the driver. Id. The Kephart Court ruled the witness' testimony does

not amount· to exculpatory evidence and second, the Commonwealth had no

reason to believe that the witness's statement was exculpatory. · Id. In

conclusion, the Court found that "a manifest injustice does not result from the

denial of appellant's motion to withdraw his guilty plea." Id.

(d) Application !
Under Kephart, this Court is required to examine the totality of the I
circumstances to determine if Defendant has met her burden of establishing
I.
manifest injustice. Like the Kephatt Court, after reviewing the totality of the

circumstances regarding Defendant's plea, this Court finds that her discovery

that Rebekah. Gensiak pled to a misdemeanor, rather than a felony,
.
lends itself
I
I to a Kephait analysis. Defense counsel contends this discovery is tantamount to

newly discovered evidence. Further they contend their strategy would have

been to cross-examine the cooperating co-defendant about her plea agreement,

suggesting the deal would have undermined her credibility as a witness. As in

Kephart, this newly discovered "evidence" does not constitute the type of

11
 exculpatory epiphany that sways this Court to find a manifest injustice. The I
I
newly discovered evidence that one of the co-defendants .in this case pled to a !
misdemeanor and not a felony is not exculpatory evidence. The Defend~nt

I admitted that she committed the crimes for which she was sentenced. The

Assistant District Attorney read the statement of facts for each crime into the I
record, and Defendant admitted to committing both crimes, stating with respect
l
to both offenses "I should have done more." N.T. 5/18/14 at p. 22-23.
I
More importantly, the Defendant is not asserting her innocence. Rather, she lI
is asserting that she would have proceeded to trial if she had known about her
I
co-defendant's plea agreement. This scenario does not equate to the discovery l
of exculpatory evidence. Rather she asserts, if she went to trial, a jury would be I
less inclined to believe Rebekah Gensiak's testimony. This is pure speculation

on her part. It is just as plausible that a jury would not have been swayed by the
I
Defense's cross-examination, In either event, this type of attenuated speculation

does not give rise to· the stringent standard utilized by our courts to warrant a

post-sentence guilty plea withdrawal.

There is no indication that this newly discovered information would have

affected the outcome of the trial and therefore, Defendant's second matter

raised on appeal is without merit.

12
I'

I
l, C; This Court Set Forth Sufficient Reasons for Defendant/Appellant's
.
Sentence in the Aggravated Range

I · a. Defendant's Argument

I!I Defendant asserts, on appeal, as follows:

i' ( c) The trial court erred in sentencing Appellant in the
11 · · aggravated range in this case. The court failed to articulate
sufficient and/or acceptable grounds for an aggravated range
I sentence on the record.

This Court sentenced Defendant to five (5) years to ten (10) years for
I!t
,1
I I
Neglect of Care-Dependent Persori under Title 18 Pa: C.S.A § 2713, graded as a
I'
felony one (1). This Court also sentenced Defendant to one (1) year to five (5)

years for Endangering the Welfare of a Child under Title 18 Pa. C.S.A § '4304; ·

graded as felony three (3). These sentences were run consecutively for an

aggregatesentence of six (6) years to fifteen (1.S) years imprisonment. ·

b. Applicable Law

The Defendant is challenging the discretionary aspect of her sentence. In

Pennsylvania, "such challenges must be raised in a post sentence motion or

during the sentencing proceedings, or they are waived." Pa. R. Crim.P. 720

(B)(l)(a); see Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003).

"Sentencing is within the sound discretion of the trial court and will not be

disturbed absent an abuse of discretion." Commonwealth v. Tirado, 870 A.2d

362, 365 (Pa. Super. 2005). A sentencing court has not abused .its discretion

"unless the record discloses that the judgment exercised was manifestly

unreasonable, or the result of partiality, prejudice, bias or ill-will."

Commonwealth v. Wall, 926 A.2d 957, 961 (2007) quoting Commonwealth v.

13
11

I Smith, 673 A.2d 893, 895 (1996). "When determining the appropriate

punishment for any convicted defendant, the trial court must be guided by

several principles: [t]he sentence imposed should call for confinement that is

consistent with 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

11 rehabilitative needs of the defendant," 42 Pa.C.S.A; §9721(b); See

11 Commonwealth. v. Young, 895 A.2d 40, 42 (Pa. Super. 2006). In addition, "the

I trial court must consider the sentencing guidelines as well as the history and

character of the defendant and the particular circumstances of the offense."

Young. 895 A.2d at 44. "A sentence will not be disturbed where it is evident

that the court was aware of the sentencing considerations and weighed the

considerations in a meaningful fashion." Commonwealth v. Cappellini, 690

A.2d 1220, 1228 (1997). Moreover, where the court's sentencing colloquy

"shows consideration of the defendant's circumstances, prior criminal record,

personal characteristics and rehabilitative potential, and the record indicates that

the court had the benefit of the presentence report, an adequate statement of the

reasons for the sentence imposed has been given." Commonwealth v. Brown,

741 A.2d 726, 735 (Pa. Super. 1999) quoting Commonwealth v. Phillips, 601

A.2d 816, 823-24 (1992).

In order to sentence a Defendant in the aggravated range, Comm. v. Hoover,

492 A.2d 443, 444 (1985) sets forth the three criteria that are applicable. First, a

sentencing judge may consider any legal factor in deciding whether a defendant

should be sentenced within the aggravated range. Id. Second, the sentencing

14
 judge's statement of reasons on record must reflect this consideration. Id.

Finally, the sentencing judge's decision regarding the aggravation of a sentence

will not be disturbed absent a manifest abuse of discretion. Id. citing

Commonwealth v. Duffy. 491 A.2d 230, 233 (198'5).

This Court set forth its reasons for sentencing Defendant in the aggravated

range, as follows:

[T]he reasons for the sentence being imposed today is that this
sentence recognizes the serious nature of the offenses that have
been committed by you, the fact that both of your victims suffered
and they suffered for a prolonged period of time-unfortunately
Mr. Robert Gensiak suffered a painful and prolonged conditionof
the Norwegian scabies-that both victims were unable either due
to their age or their deteriorating condition or disability to care for
themselves. We're talking about a two-year-old child and an adult
male but with a deteriorating condition and a disability. Both of the
victims were dependent upon you and other members of the family
to provide the proper attention and medical care necessary to
prevent any further suffering.

The sentences that I'm imposing here today, ma'am, are consistent
with the protection of the public and the rehabilitative needs of
you, the defendant.

Another reason· for the sentence here today with respect to Robert
is that by your own statements to the officers at the time of your
arrest and your own statements in the presentence investigation is
that you did take a more proactive role in the treatment and care of

I your brother Robert Gensiak, placing you in a better position to
observe his deteriorating condition, to be alarmed by it, and to
bring that attention to the appropriate authorities even if your
I mother wouldn't act.

For all of those reason, ma'am, the sentence is imposed here
today."

(tl.T. Joan Gensiak 2013 CR 2134 10/16/14 at p. 22-23.)

In sum, this Court considered that the Defendant's victims suffered for a

prolonged period of time, that Robert Gensiak suffered a painful and prolonged

15
condition of the Norwegian scabies, that both victims were unable either due to

their age or condition or disability to care for themselves and that both victims

relied on Defendant for proper attention and medical care to prevent any further
suffering. Further, this Court considered that Defendant took a more proactive

role in the care of Robert Gensiak, placing Defendant in a better position to

observe his deteriorating condition, to be alarmed by it, and to bring that

attention to the appropriate authorities even if Defendant's mother wouldn't act.

The Court set forth these reasons on the record during sentencing.

Further, this Court reviewed and took into consideration the. presentence

investigation report, heard from the Commonwealth, counsel for the Defendant

and the Defendant herself. This Court also took into consideration Defendant's

circumstances, personal characteristics, education level and rehabilitative

potential. After careful consideration of all these factors, this Court imposed the

above referenced sentence.

Based on this Court's consideration of the requisite factors, the sentencing

guidelines and based on the reasons set forth on the record, Defendant's third

matter raised on appeal is without merit.

D. This Court Did Not Abuse its discretion in Sentencing .
Defendant/Appellant Disproportionately to her Co-Defendant,
Rebekah Gensiak

a. Defendant's Argument

Defendant asserts, on appeal, as follows:

( d) The trial court abused its discretion in sentencing Appellant.
Specifically, the court sentenced Appellant in a wildly

16
 disproportionate manne to her co-defendant, Rebekah Gensiak
who was similarly situ ted to her, without adequate. reason for
doing so.

The Defendant argues th t because there is a disparity in sentencing

between her and her cooperati g co-defendant the Court should reconsider her
.j .

sentence. As noted above, this ourt sentenced Defendant to sixty (60Y.months
i
' i
to ten (10) years for Neglect of Care-Dependent Person under TitJJ 18 Pa.
i
C.S.A § 21n, graded as a fel ny one (1). This sentence is in the aggravated
I
I
range. This Court also sentenc d Defendant to twelve (12) to twenty-four (24)
i
months for Endangering the elfare of a Child under Title 18 Pa. C.S,A §
. I
I
4304, graded as felony thr e (3). The respective sentences wpre run
I
consecutively for an aggregate sentence of six (6) years to fifteen Op) years
I
i

imprisonment. This Court sen enced Rebekah Gensiak to six (6). m~nths. to
I

twenty-three (23) months impr sonment stemming from her guilty ple~ to one
. I
I
(1) count of Neglect of a Care- ependent Person, graded as a misdemeanor of

the first degree. This sentence as also in the aggravated range. I
I
!
I
c. Applicable Law
, I
A trial court is not bound to impose a "like" sentence on!all participants of a
I I

crime. Commonwealth. v. Land', 421 A.2d 442, 444 (1980)] "After conbidering
i '
I !

the circumstances relating to each defendant, the trial !court may ! impose
, I
I . j
different sentences." Common ealth v. Bu1ion, 301 A.2d 675, 677 (Pe, 1973).
I '

In order to impose different sentences on co-defendants, the collj(i must

articulate differences between the co-defendants that jjstify the ~isparate
. . I
i
sentences .. Commonwealth v. hurmond 390 A.2d: 1330( 1330 (Pa; Super.

17
11
I
1978).
.
The. reason why one
.
co-defendant receives . a more severe
.
sentence than
' •.'

another must be stated on the record. Commonwealth v. Sinwell, 457 A.2d 957,
I

960 (Pa. Super. 1983) citing Commonwealth v. McQuaid, 41_7 A.2d 1210, 1216 I
(Pa. Super 1980).
I
d. Application

At the time of sentencing, this Court had reviewed and · took into

consideration the presentence investigation report, heard from the

Commonwealth, counsel for the Defendant and the Defendant herself. This

Court also took into consideration Defendant's circumstances, personal

ii characteristics, education level and rehabilitative potential, After. careful

consideration of all these factors, this Court imposed the above referenced

sentence. Notably, the Defendant has not demonstrated .that the judgment
. .
I .

exercised by this Court was manifestly unreasonable, or the result of parti~lity,

prejudice, bias or ill-will. Instead, Defendant's sentence was the result. of

careful consideration of the reasons listed above. Further, as stated above, this

Court articulated specific reasons for Defendant's sentence in the aggravated

range.

Moreover, there are several reasons for the disparity in. sentences between

Defendant, Joan Gensiak, and her· co-defendant, Rebekah Gensiak, Th~se

reasons were articulated on the record . First and foremost, the defendants pied

guilty to different classifications of charges. Namely, Defendant Joan Gensiak
' '

pled guilty to Neglect of Care-Dependent Person in violation of Title 18 Pa.

C.S.A § 2713, graded as a felony one (1) and Endangering Welfare ofChildren

18
I
I in violation of Title 18 Pa. C.S.A § -4304, graded as a felony three (3).
I Defendant Rebekah Genisak pled guilty to one (1) count of Neglect of a Care-

Dependent person in violation Title 18 Pa. Cons. Stat. Ann. § 2713, graded as

a misdemeanor of the first degree. These different classifications obviously

carry different sentencing guidelines ..

Second, all three (3) co-defendants received a sentence in the aggravated
I range.
11
II Third, this Court articulated the reasons for the sentences of Defendant and

I Rebekah Gensiak on the record. In setting forth the reasons for Defendant Joan

Gensiak's sentence, this Court stated as follows, and as stated above:

[T]he reasons for the sentence being imposed today is that this
sentence recognizes the serious nature of the offenses that have
been committed by you, the fact that both of your victims suffered
and they suffered for a prolonged period of time=unfortunately
ML Robert Gensiak suffered a painful and prolonged condition of
the Norwegian scabies-that both victims were unable either due
to their age or their deteriorating condition or disability to care for
themselves. We're talking about a two-year-old child and an adult
male but with a deteriorating condition and a disability. Both of the
victims were dependent upon you and other members of the family
to provide the proper attention and medical care necessary to
prevent any further suffering.

The sentences that I'm imposing here today, ma'am, are consistent
with the protection of the public and the rehabilitative needs of
you, the. defendant.

Another reason for the sentence here today with respect to Robert
is that by your own statements to the officers at the time of your
arrest and your own statements in the presentence investigation is
that you did take a more proactive role in the treatment and care of
your brother Robert Gensiak, placing you in a better position to
observe his deteriorating condition, to be alarmed by it, and to
bring that attention to the appropriate authorities even if your
mother wouldn't act.

19
 For· all of those reason, ma'am, the sentence is imposed here
today."

ill.T. Joan Gensiak 2013 CR 2134 10/16/14 at p. 22-23.)

In setting forth the reasons for Rebekah Gensiak's Sentence, the Court

stated as follows:

II The reasons for my sentence here today are that the sentence is
consistent with the protection of the public and the rehabilitative
needs of you, the defendant..... that the victim due to his
11 deteriorating condition and his own disability was unable to care
for himself and was dependent upon his family members to
provide care for him, the fact that your brother suffered a painful
I
and prolonged death. This sentence also recognizes the serious
nature of the offense." ·

(N.T. Rebekah Gensiak? 2013 CR 2143, 10/16/14 at p. 16)

It is clear from the reasons set forth on the record that Defendant Joan

Gensiak was the more culpable of these defendants. Defendant Joan Gensiak

pled to two (2) felonies, each of which concerned a separate victim. Further,

while both sisters lived in the house with Robert Gensiak, Joan had more of an

opportunity to see the pain and suffering Robert suffered before his death. In

placing the reasons for the sentences on the record, this Court noted Joan's

more proactive role in her brother's care which, as stated by this Court, placed

her in a better position to observe his deteriorating condition. Joan also placed

her daughter in immediate danger and caused her daughter to suffer. Defendant

Rebekah Gensiak, while culpable in the death of Robert Gensiak, was not as

culpable in the eyes of the Court because she was out of the house more often

due to school and work. Additionally, she was on bed rest due to her pregnancy.

20
N.T. 12/17/14 at p. 80. Further, Rebekah Gensiak did not participate in hands

on care with Robert. N.T. 12/17/14 at p. 80. Finally, Rebekah Gensiak only

pied. to a misdemeanor in exchange with her cooperation as a witness for the

prosecution.

Based on the reasons set forth in the record for the differences in sentence

between Rebekah Gensiak and the Defendant, as well as this Court's

consideration of the requisite factors, Defendant's fourth matter raised on

appeal is without merit.

IV. CONCLUSION

For the reasons set forth in this Opinion, Defendant/Appellant's matters

raised on appeal are without merit.

BY THE COURT:

J.

DATE:

& - I - 1-s-

21