Com. v. Yerger, W.

J-S93023-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

WARREN E. YERGER

Appellant No. 967 EDA 2016

Appeal from the Judgment of Sentence Dated June 17, 2015
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0002650-2013

BEFORE: DUBOW, J., SOLANO, J., and PLATT, J.*

MEMORANDUM BY SOLANO, J.: FILED MARCH 17, 2017

Appellant Warren E. Yerger appeals the judgment of sentence of 339

to 690 years’ incarceration imposed following his conviction of 158 counts of

sexual abuse1 of four children. We affirm.

The trial court set forth the facts of this case as follows:

In December 2012, Trooper Heather Heffner, from the
Pennsylvania State Police Reading Barracks, received information
that [Appellant] sexually assaulted four child victims while he
____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
1
Specifically, Appellant was convicted of 11 counts of rape (18 Pa.C.S. §
3121); 56 counts of involuntary deviate sexual intercourse (18 Pa.C.S. §
3123); 29 counts of aggravated indecent assault (18 Pa.C.S. § 3125); 9
counts of incest (18 Pa.C.S. § 4302); 4 counts of endangering the welfare of
children (18 Pa.C.S. § 4304); 32 counts of corruption of minors (18 Pa.C.S.
§ 6301); 3 counts of attempted rape (18 Pa.C.S. § 901); and 14 counts of
conspiracy to commit various sexual offenses (18 Pa.C.S. § 903).
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was responsible for their care and support from 1989 through
2012. During Trooper Heffner’s investigation all four victims,
now adults, disclosed that while they resided with [Appellant]
they were subjected to sexual, physical, and emotional assaults
on a regular basis. [Appellant]’s ongoing criminal conduct lasted
for twenty-three years and encompassed four different counties
in the Commonwealth of Pennsylvania. The majority of the
sexual abuse took place in Chester County, although it continued
in McKean, Montgomery and Berks counties.

The sexual abuse committed by [Appellant] began in 1989 in
Chester County with his stepdaughter and stepson, and
continued with these victims in McKean County from 1990-1993.
The sexual abuse started when the children were 3 and 4 years
old, respectively, and occurred almost on a daily basis.
Sometimes [Appellant] would assault the children simultaneously
while they were in their bunk beds at night. During the assaults,
[Appellant] forced the children to touch his genitals, made them
engage in oral sex, and he digitally penetrated their genitals.
[Appellant] anally raped his stepson multiple times, and would
tell him “stop crying like a baby” when these rapes occurred.
[Appellant] also forced the children to engage in sexual acts with
each other. If the children refused to comply with [Appellant]’s
demands, he would either hit them or threaten them, or their
mother with violence. At one point, [Appellant] forced his
stepson to have vaginal intercourse with [Appellant]’s two year
old biological daughter. Later, [Appellant] attempted to force
[Mother], the biological mother of all the victims in the case, to
sexually assault her daughter, but she refused, and [Appellant]
severely beat her.

During the entire time he resided with these children,
[Appellant] also physically and emotionally abused them, as well
as [Mother]. On one occasion, [Appellant] broke his stepson’s
nose [by kicking] him in the face. The children were often denied
food and water by [Appellant]. On numerous occasions,
[Appellant] yelled racial epithets at his biracial stepchildren.
[Appellant] would lock his stepson in his bedroom for so long
that he would urinate in his pants.

While in McKean County, [Appellant] and [Mother] had two
daughters. Around 1993, [Mother] left the residence with all four
children and moved into a women’s shelter. Despite [Mother’s]
attempt to keep custody of all four children, the Court awarded

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[Appellant] custody of his two biological daughters. [Appellant]
then moved with his biological daughters to Chester County.

One of his daughters recalled that her sexual abuse began in
Chester County around 1995 when she was 4 or 5 years old. It
started with [Appellant] touching her genitals, and then he
taught her how to masturbate him. [Appellant] and his two
biological daughters then moved to Montgomery County with co-
defendant Deborah Keeley (“Keeley”). They lived with Keeley in
Montgomery County from 1996 until 2001 and during that time,
[Appellant] and Keeley had two sons. [Appellant] sexually
abused both his daughters during the time they resided in
Montgomery County with Keeley. The abuse continued until the
girls finally left his home well into their teens and early twenties,
respectively. [Appellant] would threaten or beat the girls if they
refused to comply with his sexual demands.

While in Montgomery County, [Appellant] digitally penetrated his
daughters, forced them to touch his genitals, engaged in oral
sex, and eventually raped them. [Appellant] also made his
daughters engage in sexual acts with each other while he
watched and instructed them on what to do. At times,
[Appellant] would sexually assault both girls simultaneously.
[Appellant] routinely forced his daughters to perform oral sex on
him or touch his genitals before and after school. Most of the
assaults occurred when Keeley was out of the house at work.
Later on, [Appellant] anally raped one daughter on multiple
occasions.

Both girls feared Keeley as she would also physically and
emotionally abuse them. Keeley would berate, slap, punch or
pull the girls’ hair regularly. One of the victims stated that
Keeley tried to suffocate her with a pillow after she had an
uncontrollable coughing fit. Keeley and [Appellant], together,
sexually assaulted one of the victim[s] when she was
approximately 6 or 7 years old.

[Appellant] and Keeley separated in 2001, and [Appellant]
moved back to Chester County with his two daughters, wherein
they remained from 2001 until 2010. While in Chester County,
co-defendant Leslie Yerger (“Leslie”), a former babysitter for
[Appellant] and Keeley, married [Appellant] and moved in with
him and his children in 2001. Leslie became a participant in the
sexual abuse of [Appellant]’s daughters. While in Chester
County, [Appellant] forced his daughters to perform oral sex on

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him and made them touch Leslie’s genitals and breasts on
multiple occasions. [Appellant] physically abused his daughters
and Leslie on multiple occasions.

[Appellant] continued to sexually abuse both of his daughters
when they moved back to Montgomery County in 2010. One
daughter left the residence in 2011, became temporarily
homeless, and attempted suicide. The other daughter moved
with [Appellant], Leslie and their children to Berks County in
2012. The sexual abuse between [Appellant] and that daughter
continued in Berks County. [Appellant]’s reign of terror and
abuse finally ended in October 2012, when [Appellant]’s
daughter left the Berks County residence and moved into a
women’s shelter.

Trial Ct. Op., 5/2/16, at 2-4.

Appellant was tried by a jury from December 15-22, 2014.2 During the

trial, the Commonwealth was permitted to introduce evidence that Appellant

physically abused the victims, his female companions, and family pets. This

evidence included testimony that Appellant beat his children and female

companions, broke his stepson’s nose, locked his stepson in his room for

extended periods of time, and restricted the children’s access to food. With

respect to the pets, the Commonwealth introduced evidence that Appellant

shot a dog that snapped at one of the children, severely beat another dog,

stomped on a kitten that he thought had scratched a child, and shot other

kittens. Appellant objected to the evidence regarding the animals, but not to

the evidence regarding the physical abuse of his family members. Appellant

argued that the animal abuse was irrelevant and highly prejudicial. N.T.,

____________________________________________

2
Co-defendants Deborah Keeley and Leslie Yerger pleaded guilty.

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pre-trial hearing, 11/25/14, at 85-86. At the conclusion of the trial, the court

instructed the jury that they could consider evidence of physical assaults on

other people and animals only for the effect it had on the child victims in this

case. N.T., 12/22/14, at 133-34.

On December 22, 2014, the jury found Appellant guilty of 158 counts,

including multiple counts of rape, attempted rape, involuntary deviate sexual

intercourse, aggravated indecent assault, endangering the welfare of

children, corruption of minors, and conspiracy.

After a hearing on June 17, 2015, the trial court found Appellant to be

a sexually violent predator. See 42 Pa.C.S. § 9799.24 (requiring assessment

of individuals convicted of sexually violent offenses). The trial court

proceeded immediately to sentencing, where it heard victim impact

statements and Appellant’s statement. Before imposing its sentence, the

court stated:

I have reviewed the presentence investigation. I’ve
reviewed the Commonwealth’s motion and the motion submitted
by defense. I’ve listened to everything that was presented here
during sentencing. I’ve considered all the sentencing alternatives
that are available to me set forth in Pennsylvania law starting
from the imposition of no sentence to the imposition of total
confinement, probation, fines, intermediate punishment, and I
believe that total incarceration is required. To do less would
depreciate the seriousness of these crimes.

The jury listened for a week to testimony in this matter.
They listened to evidence presented by the Commonwealth on
some 178 charges brought on the information and they’ve
rendered 20 not guilty verdicts and 158 guilty verdicts. That
presents an extraordinary number of charges on which to impose
sentences.

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Each of the crimes that the jury has found [Appellant]
guilty of are horrific. The testimony – the jury listened to the
testimony of four victims, two conspiratorial codefendants – no,
one, and one former woman in relationship with [Appellant].
They listened to that testimony and they found it to be credible.

There is ample testimony in support of these convictions,
overwhelming testimony in support of the convictions.

Mr. Yerger, I was looking for you to accept responsibility;
you have not. That is your right. But the jury has imposed
responsibility on you. Since you do not accept responsibility and
have not taken steps towards rehabilitation on the charges the
jury has found you guilty based upon way more than sufficient
evidence, I impose the following sentences on the crimes on
which you were convicted.

N.T., sentencing, 6/17/15, at 112-13. The court then imposed its sentence,

which totaled 339 to 690 years’ incarceration. The court further stated:

I impose that sentence after having listened to the
evidence in this case, having listened to the impact on the
victims in this case. The testimony is replete with bases for
conviction. I’ve been on the bench for 16 years. This is the worst
case of child sexual abuse I’ve ever seen or heard of in my years
on the bench or in practice.

You have accepted no responsibility in this, Mr. Yerger. In
fact, you have blamed the victims repeatedly throughout the
course of the trial and in the sentencing.

I’m fully cognizant of the fact that this is an extraordinarily
large number of years to impose a sentence, but I believe in this
case it’s warranted. Not as much as you will actually serve all of
the time, but society needs to understand that this conduct is
not acceptable.

Id. at 120-21.

On June 19, 2015, Appellant’s trial counsel filed a notice of appeal and

a motion to withdraw. Appellant did not object to the motion to withdraw,

and the trial court granted it on June 23, 2015. On June 29, 2015, Appellant

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filed a pro se post-sentence motion challenging the weight of the evidence.

On July 14, 2015, the trial court appointed new counsel for Appellant and

ordered him to file a Pa.R.A.P. 1925(b) concise statement of matters

complained of on appeal. On July 17, 2015, the trial court denied Appellant’s

pro se post-sentence motion, noting that it was untimely and that Appellant,

who was represented by counsel, was not entitled to hybrid representation.

That same day, Appellant’s new counsel filed a “Motion for Reconsideration

of Judgment of Sentence and in the Alternative Nunc Pro Tunc Motion for

Post Sentence Relief Pursuant to Pennsylvania Rule of Criminal Procedure

720(b).” In the July 17th motion, Appellant argued that his sentence was

excessive, the verdict was contrary to the weight of the evidence, and the

evidence was insufficient to support the verdict. The same day, the trial

court granted reconsideration. After several continuances, the trial court

denied the nunc pro tunc motion for post-sentence relief on March 7, 2016.3

Appellant filed a timely notice of appeal.

____________________________________________

3
Generally, a trial court no longer has jurisdiction over a case once an
appeal is taken. Pa.R.A.P. 1701(a). However, under Appellate Rule
1701(b)(3), a trial court may grant reconsideration of an order which is the
subject of an appeal if the motion is timely and if the trial court grants the
motion before the statutory appeal deadline expires (generally, within 30
days after entry of the order from which the appeal was taken). Here, the
trial court allowed the motion for reconsideration to be filed nunc pro tunc
and granted that motion on July 17, 2015 — that is, before expiration of the
30-day appeal deadline. Accordingly, based upon Rule 1701(b)(3), this Court
dismissed Appellant’s first notice of appeal as inoperative. See Dkt. No.
2112 EDA 2015.

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In this appeal, Appellant raises the following issues:

The Trial Court erred by allowing the Commonwealth to bring in
404 B evidence regarding the torturing and killing of animals.

The Trial Court erred by giving Mr. Yerger an excessive sentence
of 339 years to 690 years.

Appellant’s Brief at 4.

Objection to Evidence of Animal Abuse

Appellant first claims that the trial court erred in admitting evidence

that he abused and killed animals. He argues that this evidence was

inadmissible under Pennsylvania Rule of Evidence 404(b).

We apply the following standard of review to this claim:

The admission of evidence is solely within the discretion of the
trial court, and a trial court’s evidentiary rulings will be reversed
on appeal only upon an abuse of that discretion. An abuse of
discretion will not be found based on a mere error of judgment,
but rather occurs where the court has reached a conclusion that
overrides or misapplies the law, or where the judgment
exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will.

Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015) (quotation

marks and citations omitted), cert. denied, 137 S. Ct. 92 (2016).

“Typically, all relevant evidence, i.e., evidence which tends to make

the existence or non-existence of a material fact more or less probable, is

admissible, subject to the prejudice/probative value weighing which attends

all decisions upon admissibility.” Commonwealth v. Dillon, 925 A.2d 131,

136 (Pa. 2007). One exception to this general rule is that “[e]vidence of a

crime, wrong, or other act is not admissible to prove a person’s character in

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order to show that on a particular occasion the person acted in accordance

with the character.” Pa.R.Evid. 404(b)(1). However, evidence of an

uncharged crime may be admissible for a purpose other than to show

criminal propensity. While Rule 404(b)(2) lists a number of specific

permissible purposes, “[t]his list is not exhaustive.” Dillon, 925 A.2d at 137.

The Supreme Court of Pennsylvania has recognized that one permissible

purpose of such evidence is “to furnish the context or complete story of the

events surrounding a crime.” Id. This is often referred to as the res gestae

exception. Id.

Even if an exception to Rule 404(b)’s general prohibition applies, the

evidence of other crimes is admissible only “if only if the probative value of

the evidence outweighs its potential for unfair prejudice.” Pa.R.Evid.

404(b)(2). “‘Unfair prejudice’ means a tendency to suggest decision on an

improper basis or to divert the jury’s attention away from its duty of

weighing the evidence impartially.” Pa.R.Evid. 403 cmt.

In Dillon, the defendant was accused of sexually assaulting a child,

and the Supreme Court held that it was permissible under Rule 404(b) for

the Commonwealth to introduce in its case in chief evidence that the

defendant physically abused family members of the complainant. Dillon,

925 A.2d at 136-42. The Court explained that the evidence was “relevant for

purposes other than to show [Dillon’s] bad character and criminal

propensity.” Id. at 139. The evidence: (1) “tend[ed] to show that [the

complainant’s] experiences with [Dillon], including those assaults on family

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members, caused her to fear making a prompt report”; and (2) was

“relevant for res gestae purposes, i.e., to explain the events surrounding the

sexual assaults.” Id. The Court stated that the physical abuse was

particularly relevant given the lengthy period of time during which the sexual

abuse was alleged to have occurred (four years) and the fact that the

complainant did not report the sexual abuse until three years after it ended.

Id. With respect to the issue of prejudice, the Court noted:

Evidence will not be prohibited merely because it is harmful to
the defendant. This Court has stated that it is not required to
sanitize the trial to eliminate all unpleasant facts from the jury’s
consideration where those facts are relevant to the issues at
hand and form part of the history and natural development of
the events and offenses for which the defendant is charged.
Moreover, we have upheld the admission of other crimes
evidence, when relevant, even where the details of the other
crime were extremely grotesque and highly prejudicial.

Id. at 141 (internal quotation marks and citations omitted). The Court

noted, however, that the trial court must “carefully tailor[] how and to what

degree evidence of the reasons for [the complainant’s] delayed report is

introduced at trial” and must give limiting instructions. Id.

Here, as in Dillon, the charged sexual abuse occurred over a long

period of time, and none of the victims reported it promptly. Thus, as the

trial court explained, the evidence of Appellant’s physical assaults on his

children, female companions, and pets was relevant because it tended to

show that the victims delayed in reporting because they were terrified of

Appellant. See Trial Ct. Op. at 7-8; Dillon, 925 A.2d at 139.

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Further, we agree with the trial court that, in light of the

“overwhelming amount of evidence in this case,” the probative value of the

animal cruelty evidence outweighed any potential for unfair prejudice. See

Trial Ct. Op. at 8. We note that the testimony regarding animal cruelty

constituted a very small part of a more than weeklong trial, during which the

jury heard extensive horrific testimony regarding Appellant’s repeated sexual

assaults on the children. We further note that the trial court provided an

appropriate limiting instruction, explaining that the evidence of physical

abuse of people and animals could be considered only for the effect it had on

the child victims who witnessed it. The jury is presumed to have followed the

court’s instruction. See Commonwealth v. Hairston, 84 A.3d 657, 666

(Pa.), cert. denied, 135 S.Ct. 164 (2014).

Sentence

Appellant’s second claim is that his sentence of 339 to 690 years’

imprisonment was excessive. This is a challenge to the discretionary aspects

of his sentence. “[A] challenge to the discretionary aspects of a sentence is

not appealable as of right.” Commonwealth v. Colon, 102 A.3d 1033,

1042 (Pa. Super. 2014), appeal denied, 109 A.3d 678 (Pa. 2015); see

Sentencing Code, 42 Pa.C.S. § 9781(b) (providing that this Court has

discretion to allow an appeal of the discretionary aspects of a sentence if the

appeal presents a substantial question as to the sentence’s propriety).

Therefore, before we exercise jurisdiction to reach the merits of Appellant’s

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claim, we must verify that Appellant’s appeal is properly before this Court —

that is, that his appeal was timely filed and that the issues he seeks to raise

were properly preserved. Colon, 102 A.3d at 1042-43. If so, we must then

determine “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” pursuant to Appellate Rule 2119(f), and “whether

th[at] concise statement raises a substantial question that the sentence is

appropriate under the sentencing code.” Id. Only if the appeal satisfies

these requirements may we proceed to decide the substantive merits of

Appellant’s claim. Id. at 1043.

Here, the appeal is timely and Appellant preserved his issue in his

nunc pro tunc post-sentence motion and Pa.R.A.P. 1925(b) statement.

However, Appellant’s brief fails to comply with Rule 2119(f) of the Rules of

Appellate Procedure in that it does not contain a concise statement of

reasons upon which he relies for allowance of an appeal with respect to the

discretionary aspects of his sentence. Rule 2119(f) was promulgated by the

Supreme Court to implement the Legislature’s directive in Section 9781(b) of

the Sentencing Code that the discretionary aspects of a sentence may be

challenged only by a petition for allowance of an appeal. To “maintain[]

consistency between practice under this section of the Sentencing Code and

typical appellate practice in Superior Court, which does not ordinarily have

discretion as to the exercise of its jurisdiction,” the Supreme Court, in effect,

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provided for the petition for allowance of appeal to be accomplished by a

two-part process: the filing of a notice of appeal, and the inclusion of a Rule

2119(f) statement at the time of briefing. See Commonwealth v.

Tuladziecki, 522 A.2d 17, 19 (Pa. 1987). The Rule 2119(f) statement

enables this Court to make a preliminary determination whether the

appellant raises a substantial sentencing question that merits review, before

actually addressing the merits of that question. See id. at 19-20. By failing

to file a Rule 2119(f) statement, Appellant failed properly to invoke this

process to seek review of the discretionary aspects of his sentence, and we

therefore need not consider this issue. See Commonwealth v. Gambal,

561 A.2d 710, 714 (Pa. 1989) (Superior Court properly enforced Rule

2119(f) sua sponte, quashing appeal, although it should have granted

Appellant’s application for leave to file an amended brief).

We observe, however, that the Commonwealth does not object to this

deficiency. Indeed, while its brief quotes the language from Section 9781(b)

of the Sentencing Code that provides only for discretionary review, see

Commonwealth’s Brief at 19, and also quotes case law setting forth the

requirements for a Rule 2119(f) statement, see id. at 17-18 (quoting

Commonwealth v. Brown, 587 A.2d 4, 5-6 (Pa. Super. 1991), the

Commonwealth studiously avoids making any argument based on

Appellant’s failure to file a Rule 2119(f) statement. In Gambal, 561 A.2d at

714, the Supreme Court held that if the Commonwealth does not object to

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an appellant’s failure to file a Rule 2119(f) statement and if that failure does

not hinder this Court’s ability to determine whether the appellant raises a

substantial sentencing question and to review the merits of that question,

we may proceed to determine whether there is a substantial question. See

also Commonwealth v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004)

(“when the appellant has not included a Rule 2119(f) statement and the

appellee has not objected, this Court may ignore the omission and

determine if there is a substantial question that the sentence imposed was

not appropriate”). Here, despite the absence of a separate Rule 2119(f)

section in Appellant’s brief, the argument in that brief regarding Appellant’s

sentence provides us with sufficient information to make a preliminary

determination whether Appellant is raising a substantial question. See

Appellant’s Br. at 12-14. We therefore proceed to examine Appellant’s

sentencing issue.

A claim that a sentence is excessive does not necessarily raise a

substantial question for purposes of Section 9781(b) of the Sentencing Code.

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013) (Dodge

III), appeal denied, 91 A.3d 161 (Pa. 2014). However, a claim that an

aggregate sentence resulting from the imposition of consecutive sentences is

excessive raises a substantial question if the “decision to sentence

consecutively raises the aggregate sentence to, what appears upon its face

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to be, an excessive level in light of the criminal conduct at issue in the case.”

Id. at 1273 (citation omitted).4

In Dodge III, this Court held that the defendant raised a substantial

question when he claimed that his aggregate sentence of 40 years and 7

months to 81 years and 2 months of incarceration was excessive based on

the criminal conduct in which he engaged. Dodge III, 77 A.3d at 1273. The

defendant in Dodge had been convicted of forty counts of receiving stolen

property, two counts of burglary, two counts of criminal trespass, and one

count each of possession of a small amount of marijuana, possession of drug

paraphernalia, and unauthorized use of a motor vehicle. Id. at 1266-67. We

cautioned that although Dodge had raised a substantial question in his

particular case, a defendant does not raise a substantial question “where the

facts of the case [being reviewed] do not warrant the conclusion that there

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4
Appellant characterizes the sentence imposed in this case as a “virtual life
sentence” and argues that “a substantial question arises where a sentence is
a virtual life sentence.” Appellant’s Brief at 13 (citing Commonwealth v.
Dodge, 957 A.2d 1198 (Pa. Super. 2008) (“Dodge II”), appeal denied
980 A.2d 605 (Pa. 2009)). This argument is an incomplete and inaccurate
distillation of our holding in Dodge II, where we recognized that a virtual
life sentence was excessive in light of the criminal conduct at issue in
that case. See Dodge II, 957 A.2d at 1202 (“we conclude that, based on
the record before us, the trial court abused its discretion in imposing a life
sentence for non-violent offenses with limited financial impact”). As we
discuss in the text, not every imposition of a virtual life sentence is per se
invalid, so as to automatically raise a substantial question of impropriety
under the Sentencing Code.

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is a plausible argument that the sentence is prima facie excessive based on

the criminal conduct involved.” Id. at 1271.5

By contrast, in Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.

Super. 2011), this Court held that the defendant did not raise a substantial

question by claiming that his aggregate sentence of 633 to 1,500 years’

imprisonment was excessive. The Court explained:

Although a substantial question appears to exist on the surface,
we must emphasize that the jury found [Prisk] guilty of three
hundred and fourteen (314) separate offenses. These offenses
stemmed from Appellant’s systematic sexual abuse of his
stepdaughter, which occurred on an almost daily basis over the
course of six years.

Id.6

Similarly, in Commonwealth v. Treadway, 104 A.3d 597, 600 (Pa.

Super. 2014), this Court held that the defendant did not raise a substantial

question where he claimed that his aggregate sentence of 100 to 200 years

was excessive in light of his criminal conduct. Treadway had been convicted

of 45 counts of various sex crimes, perpetrated over the course of years on

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5
In Dodge III, this Court concluded that although Dodge had raised a
substantial question, the trial court did not abuse its discretion in sentencing
him. Dodge III, 77 A.3d at 1274-78.
6
Appellant claims that his case is distinguishable from Prisk because Prisk
was convicted of 314 offenses, while Appellant was convicted of 158.
Appellant’s Brief at 14. We note that although Appellant was convicted of
fewer offenses than Prisk, he also received a sentence that was
approximately 300 years less than that of Prisk. We therefore find
Appellant’s attempt to distinguish Prisk unpersuasive.

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his stepdaughter. Id. at 598. This Court noted that, “[w]hen considered in a

vacuum, a sentence of 100 to 200 years might seem extreme. However,

viewed in the context of [Treadway’s] conduct, we cannot conclude that the

sentence was manifestly excessive.” Id. at 600.

Instantly, Appellant was convicted of 158 counts of sex crimes

perpetrated against his four children and stepchildren. His sentence of 339

to 690 years’ incarceration, considered in a vacuum, might appear to be

excessive. However, we hold that he has not raised a substantial question

that his sentence is excessive in light of the criminal conduct at issue in this

case. See Treadway, 104 A.3d at 600; Prisk, 13 A.3d at 533.7 Appellant’s
____________________________________________

7
Viewing the sentence in terms of the specific charges at issue underscores
the magnitude of Appellant’s crimes and the reasonableness of his sentences
with respect to them. Appellant was sentenced as follows:

Count 1 and 1(a), Rape — 5-10 years consecutively

Count 2, Count 2(a)-(g), Involuntary Deviate Sexual Intercourse
(IDSI) — 5-10 years consecutive to each other and consecutive
to Count 1(a)

Count 3, Count 3(a), (b), Aggravated Indecent Assault — 4-10
years each concurrent to each other and also to Count 1

Count 4, Count (a)-(c), Corruption of Minors — No penalty

Count 5, Endangering the Welfare of Children — No penalty

Count 6, Count 6(a)-(g), IDSI — 5-10 years each, consecutive to
each other and also consecutive to count 2(g)

Count 7, Count 7 (a)-(e), Aggravated Indecent Assault — 4 -10
years each, concurrent to count 6 and concurrent to each other
(Footnote Continued Next Page)

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_______________________
(Footnote Continued)

Count 8, 8(a)-(c), Corruption of Minors — No Penalty

Count 9, Endangering the Welfare of Children — No Penalty

Count 10(a)(1)-(a)(5), Rape — 5-10 years each, consecutive to
count 6 (g) and all consecutive to each other

Count 10(b)(1)-(3), Attempted Rape — Merge

Count 11, Count 11(a)-(s), IDSI — 5-10 years each, consecutive
to count 10(a) and all consecutive to each other

Count 12 (a)(1)-(7), Aggravated Indecent Assault — 3-10 years
concurrent to 10(a)(1) and all concurrent to each other.

Count 12 (b)(1)-(3), Aggravated Indecent Assault — 3-10 years
concurrent to 10(a)(1) and all concurrent to each other

Count 13, Count 13(a)-(d), Incest — no penalty

Count 14, Count 14(a)-(k), Corruption of Minors — No penalty

Count 15, Endangering the Welfare of Children — No Penalty

Count 16, Conspiracy to commit IDSI — 4 -20 years consecutive
to Count 11(s)

Count 17, Conspiracy to commit Aggravated Indecent Assault —
2 -10 years concurrent to Count 16.

Count 18, Conspiracy to commit EWOC — 1-5 years concurrent
to Count 16

Count 19, Conspiracy to commit Corruption of Minors — 1-2
years concurrent to Count 16

Count 20 and 20(a), Conspiracy to commit IDSI — 4-20 years
concurrent to count 16 and concurrent to each other

Count 21 and 21(a), Conspiracy to commit Aggravated Indecent
Assault — 3 -10 years concurrent to each other and also to count
16

(Footnote Continued Next Page)

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J-S93023-16

case is clearly distinguishable from Dodge, in which the defendant

committed only non-violent offenses.

Even if Appellant had raised a substantial question, his claim would be

meritless. As we have frequently explained:

_______________________
(Footnote Continued)

Count 22, Conspiracy to commit corruption of minors — 1-2
years concurrent to count 16

Count 23, Conspiracy to commit Endangering Welfare of Children
— 1-2 years concurrent to count 16

Count 24, 24(a)-(c) Rape — 5-10 years each consecutive to
count 16 and consecutive to each other

Count 25, 25(a)-(s), IDSI — 5-10 years each consecutive to
count 24(c) and consecutive to each other

Count 26(a)(1)-(8), Aggravated Indecent Assault — 3-10 years
each concurrent to Count 25 and concurrent to each other

Count 26(b)(1)-(2), Aggravated Indecent Assault — 3-10 years
each concurrent to Count 25 and concurrent to each other

Count 27, Count 27(a)-(c), Incest — no penalty

Count 28, Count 28(a)-(k), Corruption of Minors — No penalty

Count 29, Endangering Welfare of Children — No penalty

Count 30, Conspiracy to commit IDSI — 4-20 years concurrent
to count 16

Count 31, Conspiracy to Commit Aggravated Indecent Assault —
4-10 years concurrent to Count 16

Count 32, Conspiracy to Commit Corruption of Minors — 1-2
years concurrent to Count 16

Count 33, Conspiracy to Commit Endangering Welfare of
Children — 1-2 years concurrent to Count 16.

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J-S93023-16

Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, an appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation

omitted), appeal denied, 980 A.2d 607 (Pa. 2009).

The Sentencing Code, 42 Pa.C.S. § 9721(b), provides that a court

should impose a sentence of 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 rehabilitative needs

of the defendant.” See Commonwealth. v. Walls, 926 A.2d 957, 962 (Pa.

2007). Here, the trial court explained its sentence as follows:

The sentence imposed by this Court is within the standard
guideline ranges of the Sentencing guidelines, and is not
excessive given the facts of the case. Furthermore, the Court did
not sentence [Appellant] to consecutive sentences for each
count. This case represents one of the most egregious cases of
child abuse in the history of Chester County. [Appellant] sexually
abused four children under his care, including his biological
children. The sexual abuse occurred over two decades in four
different counties. In addition to the horrific sexual abuse, the
victims also suffered through years of physical and emotional
abuse.

Although the Court did not deviate from the Sentencing
Guidelines, the Court still placed on the record its reasoning for
sentence. Specifically, the Court noted the systematic pattern of
abuse, the particularly despicable acts of forcing the children to
engage in sexual activity with each other, and the involvement
of two adult women in the sexual abuse of the victims. The Court
also referenced the profound impact the abuse had on the

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J-S93023-16

victim[s]. The victims all fought through the trauma and agony
associated with [Appellant’s] criminal conduct to testify at trial.
The victims testified about the catastrophic impact the abuse
had on their childhood and how they are still suffering as a
result. The Court further noted the fact that [Appellant] is a clear
danger to the community and his clear lack of remorse as well as
his refusal to accept responsibility as a basis for its sentence.

After considering the seriousness of [Appellant’s] activities and
the sentencing guidelines, the aggregate sentence imposed in
this matter was not only within the guidelines, but appropriate
under the circumstances.

Trial Ct. Op. at 6.

We discern no abuse of discretion or error of law in the sentence

imposed by the trial court. The crimes committed by Appellant were horrific.

We are a society in which, every day, parents rejoice in the births of their

children, work diligently to provide those children with care and well-being,

and proceed in the tenacious hope that the youngsters committed to their

care will grow to have lives that are better than the lives of those who

preceded them. But this record reveals an Appellant who saw his children as

mere fodder for a relentless barrage of sexual and violent abuse — a

sickening “reign of terror”8 — that continued for 23 years, and who accepted

no responsibility when the time came to face his punishment. The trial court

did not err in concluding that the criteria established by the Sentencing Code

— “the protection of the public, the gravity of the offense as it relates to the

____________________________________________

8
Trial Ct. Op., 5/2/16, at 4.

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J-S93023-16

impact on the life of the victim and on the community, and the rehabilitative

needs of the defendant” — justified the substantial punishment it imposed.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/17/2017

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