Com. v. Sanders, J.

J-S08007-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

JARVIS DANIEL SANDERS

Appellant No. 724 WDA 2015

Appeal from the Judgment of Sentence entered January 22, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No: CP-25-CR-0003577-2013

BEFORE: STABILE, DUBOW, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.: FILED MAY 12, 2016

Appellant, Jarvis Daniel Sanders, appeals from the judgment of

sentence imposed on January 22, 2015 in the Court of Common Pleas of Erie

County following his entry of no contest pleas to charges of aggravated

assault and simple assault, 18 Pa.C.S.A. §§ 2702(a)(1) and 2701(a)(1),

respectively. Appellant contends the trial court improperly imposed a

sentence in the aggravated range for the aggravated assault conviction and

erred by failing to find that the simple assault conviction merged with the

aggravated assault conviction. Following review, we affirm.

In its Rule 1925(a) opinion, the sentencing judge explained:

On November 4, 2014, Appellant appeared before the [plea
judge] and entered a no contest plea to count 1 (aggravated
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assault) and count 7 (simple assault).[1] Count 1 of the Criminal
Information charged that on November 8, 2013, Appellant
inflicted a subdural hematoma and/or brain edema and/or retinal
hemorrhaging on his infant daughter. Count 7 charged that on
that same day, Appellant inflicted several rib fractures on his
daughter.

On January 22, 2015, Appellant appeared before [the sentencing
judge] and was sentenced to a term of 7 to 15 years’
imprisonment at Count 1 (aggravated assault) and a concurrent
term of 3 to 24[2] months’ imprisonment at [C]ount 7 (simple
assault). On January 26, 2015, Appellant filed a timely Motion
for Reconsideration of Sentence, which was denied by the
[sentencing judge] on April 30, 2015.

Trial Court Opinion, 7/6/15, at 1-2 (record citation and footnotes omitted).3

Appellant filed a timely statement of errors complained of on appeal in

accordance with Pa.R.A.P. 1925(b) raising two issues that he rephrases for

this appeal as follows:

[1.] Did the lower court violate the fundamental norms which
underlie the Sentencing Code in sentencing [Appellant] in the
aggravated range and thereby failing to take into consideration
[Appellant’s] lack of criminal record and a lack of evidence for
the reasoning set forth on the record for placing the sentence in
the aggravated range?

____________________________________________

1
The Commonwealth non prossed the remaining five counts as part of the
plea agreement.
2
As reflected in the sentencing transcript, the sentence imposed for Count 7
was actually “three to 60 months,” concurrent with the sentence imposed for
Count 1. Notes of Testimony, Sentencing, 1/22/15, at 37.
3
The sentencing judge shall be referred to as the trial court throughout the
remainder of this Memorandum.

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[2.] Did the lower court commit reversible error in failing to
merge the simple assault and aggravated assault counts for
sentencing purposes?

Appellant’s Brief at 1.

Appellant’s first issue presents a question involving the discretionary

aspects of sentencing. In Commonwealth v. Allen, 24 A.3d 1058 (Pa.

Super. 2011), this Court stated:

Our review of discretionary aspects of sentencing claims
implicates the following principles:

[T]he proper standard of review when considering
whether to affirm the sentencing court’s
determination is an abuse of discretion. . . . [A]n
abuse of discretion is more than a mere error of
judgment; thus, a sentencing court will not have
abused its discretion unless the record discloses that
the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice,
bias or ill-will. . . . An abuse of discretion may not be
found merely because an appellate court might have
reached a different conclusion, but requires a result
of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so
as to be clearly erroneous. . . . The rationale behind
such broad discretion and the concomitantly
deferential standard of appellate review is that the
sentencing court is in the best position to determine
the proper penalty for a particular offense based
upon an evaluation of the individual circumstances
before it.

Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957, 961
(2007) (internal citations omitted). Challenges to the
discretionary aspects of sentencing do not entitle an appellant to
review as of right. Commonwealth v. Sierra, 752 A.2d 910,
912 (Pa. Super. 2000). An appellant challenging the
discretionary aspects of his sentence must invoke this Court’s
jurisdiction by satisfying a four-part test: (1) whether appellant
has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903;

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(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. Evans, 901
A.2d 528, 533 (Pa. Super. 2006).

Id. at 1064.4

Appellant filed a timely notice of appeal, satisfying the first prong of

the test for challenging the discretionary aspects of sentence. As for the

second prong, the trial court contends Appellant did not did not preserve

the issue because his motion for reconsideration of sentence requested only

the merger of his Count 7 sentence with his Count 1 sentence. Trial Court

Opinion, 7/6/15, at 3. However, our review of the motion reveals that

Appellant did ask the trial court to modify the sentence on Count 1 to one

in the standard range. Motion for Reconsideration, 1/26/15. Therefore,

Appellant has satisfied the second prong by preserving the issue in his

motion for reconsideration of sentence. We next consider whether there is

a fatal defect in his brief. We conclude there is not, as Appellant has

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4
Pa.R.A.P. 2111(a)(3) requires that an appellant’s brief include a statement
of the applicable scope and standard of review. This does not mean that
counsel is to define scope and standard of review, as Appellant’s counsel has
done in the brief filed in this case. Rather, it means that counsel is to advise
the appellate court of the scope of review and standard of review applicable
to an appellant’s case, for example, as here, where the scope of review for
Appellant’s first issue—discretionary aspects of sentence—is plenary, see,
e.g., Walls, 926 A.2d at 961 n.2, and the standard of review is abuse of
discretion. Id. at 961; Allen, 24 A.3d at 1064.

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included a statement of reasons for reviewing the discretionary aspects of

sentence, satisfying the requirements of Pa.R.A.P. 2119(f). Therefore, we

must determine whether there is a substantial question that the sentence

appealed from is not appropriate under the Sentencing Code.

In his Rule 2119(f) statement, Appellant claims he has raised a

substantial question, arguing his sentence was excessive “in that it was not

individualized, as mitigating factors were not taken into account. The

specific portion of the Code violated was 42 Pa.C.S. § 9781, which requires

that a sentence not be clearly unreasonable.” Appellant’s Brief at 4. A

substantial question will be found if it can be shown that the sentence was

inconsistent with a specific provision of the Sentencing Code or if it is

contrary to the fundamental norms that underlie the sentencing process.

See, e.g., Commonwealth v. Mouzon, 812 A.2d 617, 621 (Pa. 2002).

Here, Appellant asserts the trial court improperly imposed a sentence in the

aggravated range when Appellant “had no criminal history. The [c]ourt

failed to take into account factors which would have placed the sentence in

a standard range.” Appellant’s Brief at 4. We find Appellant has raised a

plausible substantial question. Mouzon, 812 A.2d at 621-22. Therefore,

we shall consider his discretionary aspects claim.

Appellant complains that his sentence was harsher than required to be

“consistent with the protection of the public, the gravity of the offense, and

the rehabilitative needs of [Appellant].” Appellant’s Brief at 4. We disagree.

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At the sentencing hearing, the trial court explained its rationale for

going above the standard range as follows:

Whatever happened here, [Appellant] - - something went terribly
wrong. I need to read from what the doctor wrote. “Kamryn
had a long protracted hospital course with many complications.
She eventually went to Children’s Home for continued therapy
after her discharge. Kamryn’s head CT looks terrible. She has
brain atrophy and abnormal EEG leads. The severe brain injury
that she has is permanent. Additionally, it is unlikely she will
ever see again.” And Miss Lambert indicates there may be some
vision. How useful it is, we don’t know. “She requires all of her
nutrition by a “G” tube.” And now we have a child that cannot,
and will never feed herself. “She is incapable of eating.”
Indeed, to my eye, the child is incapable of performing most of
the basic functions of life that constitutes autonomy and joy.
“Kamryn will be dependent for her care for the greater portion
for the rest of her life.”

"In review of her injuries - - subdural hematomas, multiple
healing and fresh rib fractures and a tibia fracture - - It is my
assessment medically that Kamryn has been the victim of
abusive head trauma. And she is the victim of child abuse. And
notably, the healing rib fractures on her first day in November
will tell us that she had been the victim of physical child abuse
on more than one occasion."

"Kamryn’s injuries are so severe and permanent, I cannot
imagine the amount of violence and pain that this young infant
had to endure in her short life.”

One of the more chilling things I’ve ever had to read. And in my
view, the injuries inflicted on this child come close to the most
severe I’ve seen in a serious bodily injury case.

[Appellant] - - I’ll grant you all the things that can be said on his
behalf. But here the sentence is driven, not by the defendant’s
character or his past, but by the horror of what occurred to this
child. And it’s that that the sentence must speak to. I note the
guidelines here of 36 to 54 months; but my conclusion is the
defendant, notwithstanding a good background, demonstrated a
hardness of heart, a wickedness of deposition, a mind totally
bereft of his duty of parent to a child, and inflicted horrific

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injuries on the child from which she will never recover. This is
an act short - - short of murder. It’s hard to fathom his intent.
That he intended or was he just reckless? The statute captures
both.

But here it’s the [c]ourt’s view that the injuries inflicted on the
child and the degree of injuries and her youth, go outside the
guidelines and a sentence of 34 - - 36 to 54 [] months are not
appropriate to capture the severity of what occurred here. So
I’m going to depart from the guidelines. I’m going to find these
injuries and their extensiveness, and as Ms. Lambert laid out, on
a child so young by a parent does warrant a sentence above the
guidelines.

Notes of Testimony, Sentencing, 1/22/15, at 34-37.

In the Rule 1925(a) opinion, the trial court further explained:

Despite Appellant’s argument to the contrary, this [c]ourt did not
err in considering evidence of the victim’s extensive injuries and
exhaustive medical treatment. “Sentencing courts may consider
evidence that might not be admitted at trial.” Commonwealth
v. Charles, 488 A.2d 1126, 1129 (Pa. Super. 1985) (citation
omitted). “[F]actors that are not specific elements of an offense
may be considered by the sentencing court in imposing its
sentence.” Commonwealth v. Perry, 32 A.3d 232, 242 (Pa.
2011). Furthermore, “[e]ven if a sentencing court relies on a
factor that should not have been considered, there is no abuse of
discretion when the sentencing court has significant other
support for its departure from the sentencing guidelines.”
Commonwealth v. Sheller, 961 A.2d 187, 192 (Pa. Super.
2008) (citation omitted).

The sentence was tailored to Appellant’s individual situation and
the reasons for the sentence imposed were clearly set forth on
the record. Any lesser sentence would have depreciated the
nature of the offense and “diminish[ed] what’s been taken from
this child, which is in the [c]ourt’s view, everything short of life
itself.” N.T. Sentencing, 01/22/15, at 37. Because Appellant’s
sentence was within the statutory limits and not manifestly
excessive, there was no sentencing error.

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Trial Court Opinion, 7/6/15, at 6-7. We agree. As our Supreme Court has

recognized, “Even with the advent of the sentencing guidelines, the power of

sentencing is a function to be performed by the sentencing court. Thus,

rather than cabin the exercise of a sentencing court's discretion, the

guidelines merely inform the sentencing decision.” Walls, 926 A.2d at 961-

62 (footnote and citations omitted). The trial court, with the benefit of a

pre-sentence report, devised a sentence the court believed was appropriate

for Appellant, despite his lack of a prior record, and was warranted by the

severity of the crime. We find no abuse of discretion in the trial court’s

imposition of Appellant’s sentence above the standard range but within

statutory limits. Appellant’s first issue fails.

In his second issue, Appellant contends the trial court committed an

error of law for failure to merge the simple assault and aggravated assault

counts for sentencing purposes. As a challenge to the legality of sentence,

the standard of our review is de novo and the scope of our review is plenary.

See, e.g., Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa. Super.

2012).

With respect to merger of sentences, 42 Pa.C.S.A. § 9765 provides:

No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the
other offense. Where crimes merge for sentencing purposes, the
court may sentence the defendant only on the higher graded
offense.

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42 Pa.C.S.A. § 9765. In Commonwealth v. Baldwin, 985 A.2d 830 (Pa.

2009), our Supreme Court stated, “The statute’s mandate is clear. It

prohibits merger unless two distinct facts are present: 1) the crimes arise

from a single criminal act; and 2) all of the statutory elements of one of the

offenses are included in the statutory elements of the other.” Id. at 833.

In Commonwealth v. Williams, 958 A.2d 522 (Pa. Super. 2008, this

Court reiterated:

[I]n all criminal cases, the same facts may support multiple
convictions and separate sentences for each conviction except in
cases where the offenses are greater and lesser included
offenses. The Supreme Court further defines “the same facts” as
follows: any act or acts which the accused has performed and
any intent which the accused has manifested, regardless of
whether these acts and intents are part of one criminal plan,
scheme, transaction or encounter, or multiple criminal plans,
schemes, transactions or encounters. Regarding the
consideration of greater and lesser included offenses, if each
offense requires proof of a fact which the other does not, the
offenses are not the same for double jeopardy and merger
purposes, even though arising from the same conduct or
episode.

Id. at 527 (internal quotations, citations, and brackets omitted).

Here, the trial court conceded that the elements of simple assault are

included within the statutory elements of aggravated assault. Trial Court

Opinion, 7/6/15, at 8. However, with regard to whether the crimes arose

from a single act, “[a] determination must be made on whether Appellant’s

actions ‘constituted a criminal act,’ with reference to elements of the crime

as charged by the Commonwealth.” Id. (emphasis in original) (citing

Commonwealth v. Jenkins, 96 A.3d 1055, 1060 (Pa. Super. 2014)).

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The trial court looked to the criminal information, which charged

Appellant with aggravated assault for “caus[ing] the victim to sustain a

subdural hematoma and/or brain edema and/or retinal hemorrhaging,” and

simple assault for “caus[ing] the victim to sustain several rib fractures.” Id.

at 9 (quoting Criminal Information, 1/23/14). The trial court concluded

that, “[d]espite Appellant’s argument to the contrary, this case involved

multiple acts. Appellant squeezed the victim and also shook her three times,

causing her to suffer two distinct injuries.” Id.

When considering whether there is a single criminal
act or multiple criminal acts, the question is not
whether there was a ‘break in the chain’ of criminal
activity. This issue is whether the actor commits
multiple criminal acts beyond that which is necessary
to establish the bare elements of the additional
crime, then the actor will be guilty of multiple crimes
which do not merge for sentencing purposes.

Trial Court Opinion, 7/6/15, at 8 (citing Commonwealth v. Pettersen, 49

A.3d 903, 912 (Pa. Super. 2012) (internal citations and quotation marks

omitted)). The trial court therefore concluded, “Appellant was appropriately

sentenced at Count 7.” Id.

We agree with the trial court’s characterization of this issue as a “close

call.” Id. (quoting Notes of Testimony, Sentencing, 1/22/15, at 19).

However, based on our review, we also agree that the crimes charged

involved separate criminal acts such that the crimes do not merge for

sentencing purposes. Therefore, Appellant’s second issue fails.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/12/2016

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