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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
MARY C. RADER
Appellant No. 726 WDA 2015
Appeal from the Judgment of Sentence March 26, 2015
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0001181-2014
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PANELLA, J.
MEMORANDUM BY PANELLA, J. FILED JULY 13, 2016
Appellant, Mary C. Rader, appeals from the judgment of sentence
imposed after she entered a negotiated guilty plea to one count of
aggravated assault of a victim less than 13 years of age, whereby she
admitted to recklessly starving her seven-year-old son to the point where he
weighed 25 pounds and was within a month of dying from malnourishment.
Rader contends that the trial court abused its discretion in imposing an
excessive sentence that failed to address her rehabilitative needs. After
careful review, we conclude that the trial court adequately considered all of
the attendant circumstances and fashioned an appropriate sentence. We
therefore affirm.
The certified record reveals the following factual background. Rader,
who was 28 at the time of her arrest, lived with her mother, father, and five
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children. On June 6, 2014, Mercer County Children and Youth Services
(“CYS”) intervened and removed Rader’s seven-year-old son from her
residence due to severe malnourishment and transported him to Children’s
Hospital in Pittsburgh. At Children’s Hospital, Rader’s son was diagnosed as
“nearly skeletal.” He had the weight of an average two-year-old.
Rader, her mother, and her father were all charged with various
crimes regarding their care of Rader’s son. Pursuant to a plea agreement
with the Commonwealth, Rader and her mother each pled guilty to
aggravated assault of a person under 13 years of age by a person over 18
years of age. In Rader’s mother’s case, the Commonwealth incorporated a
sentence of five to ten years of imprisonment into the plea agreement. In
contrast, the Commonwealth was willing to defer to the discretion of the trial
court regarding Rader’s sentence, in explicit consideration of a psychological
profile performed while Rader was imprisoned.
CYS requested the profile to evaluate the appropriateness of
placement goals for Rader’s children. The profile indicated that Rader
suffered from dependent personality disorder (“DPD”). A person with DPD
suffers from a self-perception of incompetence in the absence of care and
assistance of others, which leads to submissive behavior and a strong fear of
separation from caregivers. The profile indicated that Rader was dependent
primarily upon her mother. This is consistent with her mother’s guilty plea,
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wherein her mother agreed that she was the primary decision maker in the
household.
At the close of the sentencing hearing, the trial court sentenced Rader
to 66-180 months of imprisonment. Rader filed a motion to modify sentence,
which the trial court denied. This timely appeal followed.
On appeal, Rader argues that the trial court imposed an excessive
sentence that failed to address her rehabilitative needs. Rader acknowledges
that this is a challenge to the discretionary aspects of her sentence. See
Appellant’s Brief, at 3. “A challenge to the discretionary aspects of a
sentence must be considered a petition for permission to appeal, as the right
to pursue such a claim is not absolute.” Commonwealth v. Hoch, 936 A.2d
515, 518 (Pa. Super. 2007) (citation omitted).
Before this Court may reach the merits of a challenge to the
discretionary aspects of a sentence, we must engage in a four
part analysis to determine: (1) whether the appeal is timely; (2)
whether Appellant preserved his issue; (3) whether Appellant’s
brief includes a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of
sentence [see Pa.R.A.P. 2119(f)]; and (4) whether the concise
statement raises a substantial question that the sentence is
appropriate under the sentencing code….[I]f the appeal satisfies
each of these four requirements, we will then proceed to decide
the substantive merits of the case.
Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citation
omitted; brackets in original).
Here, Rader preserved her claims by including them in her post-
sentence motion. Moreover, Rader’s brief contains the required Rule 2119(f)
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statement. We must now determine whether Rader has presented a
substantial question for our review.
A “substantial question” as to the inappropriateness of a sentence
under the Sentencing Code 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. Glass, 50 A.3d 720, 727 (Pa. Super. 2012) (internal
quotations and citations 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).
In her Rule 2119(f) statement, Rader asserts that the sentence
imposed “wholly fails to consider her unique rehabilitative needs and that
the sentence so deviated from the fundamental norms of the sentencing
process to be manifestly unfair, excessive and unduly severe.” Appellant’s
Brief, at 3. She proceeds to cite Commonwealth v. Flowers, 950 A.2d
330, 311 (Pa. Super. 2008), and Commonwealth v. Kelly, 33 A.3d 638,
640 (Pa. Super. 2011), to support her argument that she has raised a
substantial question. However, neither Kelly nor Flowers address the claim
made by Rader; both cases deal with the trial court’s failure to order a pre-
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sentence investigation before imposing sentence. Here, the trial court had
not only a pre-sentence investigation, but also a full psychological profile.
Kelly and Flowers do not support a conclusion that Rader has raised a
substantial question.
It therefore appears that Rader has raised a bald excessiveness claim.
The Commonwealth argues that as such, she has per se failed to raise a
substantial question. However the Supreme Court of Pennsylvania has
explicitly rejected this bright-line approach and the previous case law that
had supported it. See Commonwealth v. Mouzon, 812 A.2d 617, 624 (Pa.
2002) (finding that Superior Court erred in holding that the excessiveness of
a sentence within statutory limits does not raise a substantial question). 1
More recently, this Court has provided a further framework for
evaluating whether excessiveness claims raise a substantial question. A
panel of this Court has cautioned appellants that simple citations to broad
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1
Mouzon does not have an opinion that garnered the support of a majority
of Justices. The lead opinion received the explicit support of three Justices,
with two concurring in result only. As usual, it is impossible to decipher what
portion of the lead opinion these concurrences did not endorse. However,
the two dissenting Justices agreed with the lead opinion that mere
excessiveness claims could raise substantial questions. See Mouzon, at 628
(Castille, J., dissenting) (“I also agree with the lead opinion that a claim that
a sentence is excessive … is not categorically barred from appellate review
under the Sentencing Code.”); Id., at 630 (Eakin, J., dissenting) (“while my
colleagues offer an analysis with which I cannot disagree, I believe there is a
misapprehension of the Superior Court’s decision”). The dissents conclude
that the Superior Court did not err as we did not utilize a categorical ban,
but rather we merely found the Rule 2119(f) statement filed by Mouzon to
be insufficiently specific. See id.
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authorities “may not be sufficient where the facts of the case do not warrant
the conclusion that there is a plausible argument that the sentence is prima
facie excessive based on the criminal conduct involved.” Commonwealth v.
Dodge, 77 A.3d 1263, 1271 (Pa. Super. 2013).2 Another panel of this Court
has held that an excessive sentence claim, in conjunction with a claim that
the trial court failed to properly consider mitigating factors, raises a
substantial question. See Commonwealth v. Raven, 97 A.3d 1244, 1253
(Pa. Super. 2014), appeal denied 105 A.3d 736 (Pa. 2014). Here, Rader has
argued that the sentence was excessive, and that the trial court failed to
adequately consider her rehabilitative needs. Pursuant to Raven, she has
raised a substantial question, and we proceed to address the substance of
her argument.
Rader contends that the trial court erred in imposing a longer sentence
based upon the psychological profile, which she argues was mitigating
evidence. The trial court’s review of the psychological report led it to
conclude that it was not purely mitigating, but rather a “two-edged sword.”
N.T., Sentencing, 3/26/15, at 67. The report indicated that Rader’s “use of
denial as a primary coping mechanism makes it more difficult to benefit from
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2
Judge Wecht dissented from the majority’s analysis of the substance of
Dodge’s challenge to the discretionary aspects of the sentence imposed, but
agreed that Dodge had raised a substantial question. See id., at 1278. It is
unclear whether Judge, now Justice, Wecht agreed with the above quoted
passage.
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rehabilitative efforts.” Id., at 65. Furthermore, the trial court observed that
the profile concluded that “there is an increased need to protect children
from you because of this disorder, and that is just not talking about your
own children. It is any children, as it says in the report.” Id.,at 66.
After reviewing the psychological profile, we conclude that the trial
court’s description is accurate as to its contents. We therefore cannot find
any fault with the trial court’s reasoning that the profile contained both
mitigating and aggravating factors. While Rader has been diagnosed as
suffering a psychological disorder that mitigates, to some extent, her
culpability for her actions in this case, it is also true that the nature of the
disorder augurs for a long and difficult rehabilitation, and further, that until
rehabilitated, children must be protected from her. Thus, the trial court’s
decision to impose a longer sentence due to this diagnosis is not
unreasonable, and does not constitute an abuse of its discretion. Rader’s
sole issue on appeal therefore merits no relief.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/13/2016
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