J-S72040-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
PATRICIA ANN PARTHE, :
:
Appellant : No. 718 MDA 2016
Appeal from the Judgment of Sentence March 9, 2016,
in the Court of Common Pleas of Berks County,
Criminal Division, at No(s): CP-06-CR-0004500-2015
BEFORE: GANTMAN, P.J., DUBOW, and STRASSBURGER, JJ.*
MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 22, 2016
Patricia Ann Parthe (Appellant) appeals from the judgment of sentence
imposed after she pled guilty to theft by unlawful taking. Upon review, we
affirm.
The Commonwealth summarized the factual history underlying
Appellant’s guilty plea as follows.1
At the sentencing hearing, the lower court heard testimony
from two of the victims in the instant matter. Victim Leianne
Cunningham Munch (hereinafter “Mrs. Cunningham Munch”)
testified that the company, Munch Mechanical and Industrial,
Inc., (hereinafter “the company”) hired [Appellant] in April 2015
to handle the company’s payroll. [Appellant’s] initial job
performance was satisfactory. During the first months of her
employment, [Appellant] earned Mrs. Cunningham Munch’s trust
by attending church with her and her [family], caring for her
1
Only the Commonwealth has provided this Court with a detailed recitation
of the factual history of this case, consisting mostly of testimony provided by
one of the victims during the March 9, 2016 sentencing hearing. We further
note that this Court has not received a copy of the guilty plea transcript.
*Retired Senior Judge assigned to the Superior Court.
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dogs, and running small errands. The company eventually hired
[Appellant’s] husband.
Beginning in July 2015, [Appellant’s] attendance became
sporadic to such a degree that Mrs. Cunningham Munch
considered terminating [Appellant’s] employment. In reviewing
her job performance, Mrs. Cunningham Munch discovered that
[Appellant] had embezzled over $20,000 from the company by
inflating her own pay and that of [Appellant’s] husband. The
loss led the company to hire accountants in order to keep the
“small ma-and-pa business afloat.”
When Mrs. Cunningham Munch confronted [Appellant] with
her crimes, [Appellant] calmly admitted her guilt. In so doing,
she expressed no remorse and made no offer to repay the stolen
money. [Appellant] further admitted that the company was not
her first victim, showing no remorse for her past crimes. Finally,
Mrs. Cunningham Munch reviewed [Appellant’s] Facebook page
which revealed that [Appellant] had gone on an extensive
vacation and had a “wonderful summer.” In addition to live
testimony, two letters written by [Appellant’s] victims from
previous cases were reviewed by the court prior to the
imposition of sentence.
In support of her request for a county jail sentence,
[Appellant’s] daughter testified that [Appellant] “always provided
for” her and her brother. [Appellant’s] husband Robert [Parthe]
testified that he was unaware that [Appellant] was stealing from
the company and that [Appellant] is extremely remorseful.
Robert Parthe further testified that he forgives Mrs. Cunningham
Munch for “causing a lot of drama” for their family by
“harassing” them after [Appellant’s] felonious activities were
revealed. Speaking on [Appellant’s] behalf, [Appellant’s]
counsel described her mental health issues which prevented her
from attending court on a prior occasion because she had
“checked herself into Schuylkill Medical Center for psychological
problems she was having.”[2]
2
Counsel averred Appellant was “extremely remorseful” and had voluntarily
committed herself following an attempted suicide after learning about the
death of Jim Munch, a co-owner of Munch Mechanical and Industrial, Inc.
N.T., 3/9/2016, at 15-16.
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Prior to imposing sentence, the lower court reviewed
[Appellant’s] incomplete PSI. In addition to the 18 misdemeanor
and felony priors reflected in the PSI, the parties agreed that
several more offenses were not included for some unknown
reason. The overwhelming majority of [Appellant’s] prior
convictions, which included at least four felonies of the 3rd
degree, are for theft offenses or other offenses involving
fraud/dishonesty in financial matters. Furthermore, 17 of the
counts for which [Appellant] was convicted resulted in
concurrent sentences. Finally, of the $106,454.06 in restitution
ordered in [Appellant’s] previous cases since 2003, she paid only
$10,081.01 at the time of her sentencing in the instant matter.
The parties agreed that [Appellant’s] prior record score is
4. The offense gravity score for the theft charge is 5, placing the
standard range at 9 to 16 months, with an aggravated range of
19 months.
Commonwealth’s Brief at 3-5 (citations removed).
Appellant entered an open guilty plea to the aforementioned crime on
January 5, 2016. She was sentenced on March 9, 2016, to the statutory
maximum: a term of three and one-half years to seven years of
imprisonment.
On March 24, 2016,3 Appellant filed post-sentence motions requesting,
inter alia, to modify her sentence, which the trial court denied following a
hearing on April 14, 2016. This appeal followed, wherein Appellant’s sole
issue is “[w]hether the [sentencing court] imposed an impermissibly
3
Following her sentencing hearing, Appellant expressed a desire to file an
ineffectiveness claim against trial counsel. The trial court thereafter
appointed new counsel and granted Appellant an additional ten days to file
post-sentence motions. Therefore, Appellant’s post-sentence motions, filed
fifteen days after her sentencing hearing, were timely-filed.
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excessive sentence beyond even the aggravated sentencing guidelines
without a sufficient basis in the record for doing so?” Appellant’s Brief at 6.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant
challenging the discretionary aspects of his [or her] sentence
must invoke this Court’s jurisdiction by satisfying a four-part
test:
We conduct a four-part analysis 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.[] § 9781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (some
citations omitted).
Here, Appellant filed timely post-sentence motions and a notice of
appeal, and included a statement pursuant to Rule 2119(f) in her brief. On
appeal, Appellant alleges the reasons given by the sentencing court for
imposing the statutory maximum “may [have justified] an aggravated
sentence, but they are hardly so unusual as to justify a total departure from
the guidelines.” Appellant’s Brief at 9. She further argues that
Appellant’s theft of approximately $22,000.00 is not
unusually high as felony theft cases go, and is not an amount so
high that it would be effectively impossible for a person to make
restitution payments towards in the course of their supervision.
The Assistant District Attorney made some remarks about
pending restitution in other cases in other counties, but those
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remarks are not evidence and were not, apparently, considered
by the sentencing court.
The sentencing court pointed to [A]ppellant’s risk of
recidivism and undersigned counsel does not disagree that risk
can reasonably support an escalation of sanctions. But the
sentencing guidelines are not inadequate to the task of
escalating sanctions as the sentencing court indicates.[4] Instead
of a standard range sentence of, for example, 9 to 23 months in
county jail (which is a standard range sentence in this case) the
sentencing court could reasonably have entered an aggravated
range sentence of 19 to 84 months in state prison.
Id. at 12.
Because the discretionary-aspects claim Appellant presents on appeal
is not identical to one she presented in her post-sentence motion, we must
determine if Appellant’s claim is properly preserved for our review. In so
doing, we observe that
challenges to a court’s sentencing discretion must be raised
during sentencing or in a post-sentence motion in order for this
Court to consider granting allowance of appeal. Moreover, for
any claim that was required to be preserved, this Court cannot
review a legal theory in support of that claim unless that
particular legal theory was presented to the trial court. Thus,
even if an appellant did seek … to attack the discretionary
aspects of sentencing in the trial court, the appellant cannot
support those claims in this Court by advancing legal arguments
different than the ones that were made when the claims were
preserved.
4
The sentencing court also cited Appellant’s lack of remorse, based on her
“demeanor.” Appellant argues that “to generally reference a person’s
‘demeanor’ is little different than saying, ‘I don’t like your face.’” Appellant’s
Brief at 11.
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Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (citations
omitted).
In her post-sentence motion, Appellant alleged “that her statutory
maximum sentence is manifestly excessive and that it was an abuse of
discretion on the part of the [s]entencing [c]ourt.” Post-Sentence Motion,
3/29/2016, at 1 (unnumbered). At the hearing on Appellant’s motion, her
counsel requested Appellant be sentenced within the guideline range,
arguing that even if Appellant’s additional convictions which were not taken
into account in her PSI were accounted for, the aggravated sentence would
still be significantly lower than that of the statutory maximum imposed. See
N.T., 4/14/2016, at 3-4. Appellant did not include a claim based on the
sentencing court’s alleged failure to provide adequate reasons for the
sentence within in her motion nor did she argue such a claim at the hearing.
Therefore, we find her claim waived. Rush, 959 A.2d at 949.
Even if we were to address the merits of the claim, Appellant would
not be entitled to relief. At the outset, we recognize that “[t]his Court has
found a substantial question exists where the sentencing court failed to
provide sufficient reasons for imposing a sentence outside of the guidelines.”
Commonwealth v. Lewis, 911 A.2d 558, 567 (Pa. Super. 2006) quoting
Commonwealth v. Robertson, 874 A.2d 1200, 1212 (Pa. Super. 2005).
Here, Appellant’s counsel admitted “there are aggravating factors in
this case” and further stated he wouldn’t “pretend that there are significant
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mitigating factors.” N.T., 4/14/2016, at 3. Additionally, in her 2119(f)
statement, Appellant sets forth all the reasons provided by the sentencing
court for sentencing Appellant to the statutory maximum: (1) “[a]n
extensive prior record of theft-type offenses which [were] not adequately
accounted for by the sentencing guidelines’” (2) “[a] likelihood of
recidivism;” (3) “[t]he impact of the offense on the victims;” (4) “Appellant’s
lack of remorse as evidence by her undescribed ‘demeanor” and; (5) “[a]
lesser sentence would depreciate the seriousness of the case.” Appellant’s
Brief at 5.
Nevertheless, Appellant attempts to argue that such reasons may be
adequate for imposing a sentence in the aggravated range, but cannot
support a statutory maximum sentence. We disagree.
The statute requires a trial judge who intends to sentence a
defendant outside of the guidelines to demonstrate on the
record, as a proper starting point, [its] awareness of the
sentencing guidelines. Having done so, the sentencing court may
deviate from the guidelines, if necessary, to fashion a
sentence which takes into account the protection of the
public, the rehabilitative needs of the defendant, and the
gravity of the particular offense as it relates to the impact
on the life of the victim and the community, so long as [it]
also states of record the factual basis and specific reasons
which compelled [it] to deviate from the guideline range.
Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012) (citation
removed; emphasis added; brackets in original). Furthermore, “[w]here the
sentencing court had the benefit of a [PSI], we can assume the sentencing
court ‘was aware of relevant information regarding the defendant’s character
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and weighed those considerations along with mitigating statutory factors.’”
Griffin, 65 A.3d at 937 (quoting Commonwealth v. Devers, 546 A.2d 12,
18 (Pa. 1988)).
As acknowledged by Appellant, the sentencing court set forth ample
reasoning for sentencing Appellant to the statutory maximum:
The [sentencing court] is not impressed by the fact we
were scheduled for sentencing and conveniently a day before
sentencing [Appellant] checks herself in to self-report another
issue prior to sentencing. [The sentencing court] finds she is a
danger to society, a danger to society in the fact that she has a
history of going and getting people and confide[s] in them then
stealing from people who she befriends and taking families and
putting them in financial distress. [The sentencing court] has no
doubt [Appellant] will continue to do this as long as she is
allowed to do this.
[Appellant] has multiple current convictions. She has[,] as
I said[,] a repeat criminal pattern. She is a habitual offender. I
find her to be a career criminal. I don’t find she show[s] any
remorse whatsoever. I am completely disturbed by the fact that
[] these victims had to sit there and watch her spend their hard
earned money while she traipse[d] through the country on
vacation.
There are multiple victims involved in this case, a lesser
sentence would depreciate the seriousness of the case. She has
a long prior adult misdemeanor record which is not accurately
reflected by the guidelines in this case. And it’s interesting to
the [sentencing court] that she received probation after
probation and then was sent to jail.
N.T., 3/9/2016, at 20-21.5 Here, the sentencing court set forth the
applicable guidelines and provided several reasons why the court felt a
5
The sentencing court echoed its reasoning at Appellant’s post-sentence
motion hearing.
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deviation from the guidelines was necessary. Appellant has provided no
case law to support her argument that the reasons relied upon by the trial
court “may justify an aggravated sentence” but cannot support “a total
departure from the guidelines.” Appellant’s Brief at 9. In light of the
foregoing, we discern no abuse of discretion in the trial court’s decision to
impose the statutory maximum sentence in this case.
Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/22/2016
As I stated before, my concern here, which I believe is a
legitimate concern, is that [Appellant] has perfected a craft of
deceiving people, of knowing how to get into people’s lives,
making them trust her. She has done this as a career and her
prior record does not in any way reflect the amount of damage
that she is doing to people’s lives. There is just no way.
N.T., 4/14/2016, at 7.
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