J-S44025-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ZACHARY SCOTT MCPHAIL,
Appellant No. 882 EDA 2016
Appeal from the Judgment of Sentence March 4, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005380-2014
BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JULY 31, 2017
Appellant, Zachary Scott McPhail, appeals from the judgment of
sentence entered on March 4, 2016, in the Philadelphia County Court of
Common Pleas. We affirm.
The trial court provided the following procedural history:
[Appellant] was arrested December 31, 2013. On May 28,
2014, [Appellant] was formally charged with inter-alia: 1)
Involuntary Deviate Sexual Intercourse with a Child pursuant to
18 Pa.C.S.A. §3123(b); 2) Unlawful Restraint pursuant to 18
Pa.C.S.A. §2902(a)(1); 3) Incest of a Minor under 13 Years of
Age pursuant to 18 Pa.C.S.A. §4302(b)(1); 4) Corruption of
Minors pursuant to 18 Pa.C.S.A. §6301(a)(1)(i); 5) Indecent
Assault of a Child under 13 Years of Age pursuant to 18
Pa.C.S.A. §3126(a)(7); and 6) Endangering the Welfare of a
Child pursuant to 18 Pa.C.S.A. §4304(a)(1). On January 8,
2016, at the conclusion of his jury trial, [Appellant] was only
found guilty of the charge of Endangering the Welfare of a Child.
[Appellant] was found not guilty of all other charges. On
March 4, 2016, [Appellant] was sentenced to a period of
confinement in a state correctional institution for 2 years 6
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months to 5 years on the charge of Endangering the Welfare of a
Child.
On March 11, 2016, [Appellant] timely filed [a] post-
sentence motion for reconsideration of sentence pursuant to
Pa.R.Crim.P. 720(B)(1)(a). On March 14, 2016, [Appellant’s]
motion was denied without a hearing.
On March 21, 2016, [Appellant] timely filed the instant
appeal. . . . The Court ordered [Appellant] to file his Statement
of Errors Complained of on Appeal pursuant to Pa.R.A.P. 1925(b)
on March 23, 2016. On April 13, 2016, [Appellant] filed his
Statement of Errors Complained of on Appeal and
contemporaneously filed a Request for Extension of Time to file
his 1925(b) to obtain the Notes of Testimony from sentencing.
The Court granted [Appellant’s] extension. On June 15, 2016,
the Notes of Testimony from the March 4, 2016 sentencing
hearing became available. On July 7, 2016, [Appellant] filed an
amended Statement of Errors Complained of on Appeal.
Trial Court Opinion, 8/30/16, at 1–2.
Appellant raises the following issue on appeal:
Did not the lower court impose an excessive and
unreasonable sentence, contrary to the fundamental norms that
underlie the sentencing process and to specific provisions of the
Sentencing Code, including 42 Pa.C.S. §9721(b), when it
imposed a sentence beyond the aggravated range of the
sentencing guidelines (in fact, the maximum statutory sentence)
for the charge of endangering the welfare of children (hereafter,
EWOC), the sole offense of which [Appellant] was convicted; in
particular, did not the lower court err by justifying its sentence
upon [Appellant’s] prior record, when that record was already
take [sic] into account by [Appellant’s] prior record score, and
did not the lower court err by justifying its sentence upon its
improper conclusion that the jury convicted [Appellant] of EWOC
because it found that [Appellant] committed sexual offenses?
Appellant’s Brief at 3. Appellant’s issue is a challenge to the discretionary
aspects of his sentence.
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When an appellant challenges the discretionary aspects of his sentence
there is no automatic appeal; rather, the appeal will be considered a petition
for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162
(Pa. Super. 2007). Furthermore, as this Court noted in Commonwealth v.
Moury, 992 A.2d 162 (Pa. Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[W]e conduct a four-part analysis to determine: (1)
whether [the] 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 [the] 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. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)).
A substantial question requires a demonstration that “the
sentence violates either a specific provision of the sentencing
scheme set forth in the Sentencing Code or a particular
fundamental norm underlying the sentencing process.”
Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super.
2005). This Court’s inquiry “must focus on the reasons for which
the appeal is sought, in contrast to the facts underlying the
appeal, which are necessary only to decide the appeal on the
merits.” Id. Whether a substantial question has been raised is
determined on a case-by-case basis; the fact that a sentence is
within the statutory limits does not mean a substantial question
cannot be raised. Commonwealth v. Titus, 816 A.2d 251, 255
(Pa. Super. 2003). However, a bald assertion that a sentence is
excessive does not by itself raise a substantial question justifying
this Court’s review of the merits of the underlying claim. Id.
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Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super. 2012). Whether
the issue raised on appeal constitutes a substantial question is a matter
evaluated on a case-by-case basis. Commonwealth v. Kenner, 784 A.2d
808, 811 (Pa. Super. 2001).
Appellant has satisfied the first three elements of the four-part test
from Moury. Appellant filed a timely notice of appeal, a timely motion to
reconsider sentence, and he included a statement of reasons for the
allowance of appeal in his brief. Appellant’s Brief at 11. Accordingly, we
address whether Appellant raised a substantial question.
Appellant asserted three instances in which the trial court abused its
discretion: 1) the trial court double-counted factors that were already
incorporated in the Sentencing Guidelines; 2) the trial court relied on
impermissible factors when it imposed Appellant’s sentence; and 3) the
sentence was disproportionate to Appellant’s conduct and was not justified.
Appellant’s Brief at 12–13. We conclude that Appellant raised substantial
questions with each of his claims. See Commonwealth v. Robinson, 931
A.2d 15, 27 (Pa. Super. 2007) (a claim that the trial court impermissibly
double-counted factors already incorporated in the sentencing guidelines
raises a substantial question); Commonwealth v. McNabb, 819 A.2d 54,
56–57 (Pa. Super. 2003) (a claim that the trial court relied on impermissible
factors raises a substantial question); and Commonwealth v. Parlante,
823 A.2d 927, 930 (Pa. Super. 2003) (a claim that the trial court
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disproportionately sentenced the defendant without providing a justification
raises a substantial question).
It should be noted that “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.” Commonwealth v. Sheller,
961 A.2d 187, 190 (Pa. Super. 2008). Additionally, an abuse of discretion is
not shown merely by an error in judgement; rather, an appellant must
establish that the trial court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias, or ill will, or reached a
manifestly unreasonable decision. Id.
When imposing a sentence, the sentencing court is
required to consider the sentence ranges set forth in the
Sentencing Guidelines, but it [is] not bound by the Sentencing
Guidelines. Commonwealth v. Yuhasz, 592 Pa. 120, 923 A.2d
1111, 1118 (2007) (“It is well established that the Sentencing
Guidelines are purely advisory in nature.”); Commonwealth v.
Walls, 926 A.2d 957, 965 (referring to the Sentencing
Guidelines as “advisory guideposts” which “recommend ... rather
than require a particular sentence”). The court may deviate
from the recommended guidelines; they are “merely one factor
among many that the court must consider in imposing a
sentence.” Yuhasz, 923 A.2d at 1118. A court may depart
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.” Commonwealth v. Eby, 784 A.2d 204,
206 (Pa.Super.2001). When a court chooses to depart from the
guidelines however, it must “demonstrate on the record, as a
proper starting point, his awareness of the sentencing
guidelines.” Eby, 784 A.2d at 206. Further, the court must
“provide a contemporaneous written statement of the reason or
reasons for the deviation from the guidelines.” 42 Pa.C.S.A.
§ 9721(b).
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Sheller, 961 A.2d at 190 (emphasis added).
With respect to the first part of Appellant’s argument concerning
double-counting factors identified in the Sentencing Guidelines, specifically
his criminal history, we note that as a general rule, courts are not permitted
to double-count factors already included in the Sentencing Guidelines.
Commonwealth v. Goggins, 748 A.2d 721, 732 (Pa. Super. 2000).
Nevertheless, this Court had held that
“[w]hen imposing a sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant.” Commonwealth v. Griffin, 804 A.2d 1, 10
(Pa.Super.2002), appeal denied, 582 Pa. 671, 868 A.2d 1198
(2005), cert. denied, 545 U.S. 1148, 125 S.Ct. 2984, 162
L.Ed.2d 902 (2005). “In particular, the court should refer to the
defendant’s prior criminal record, his age, personal
characteristics and his potential for rehabilitation.” Id. Where
the sentencing court had the benefit of a presentence
investigation report (“PSI”), we can assume the sentencing court
“was aware of relevant information regarding the defendant’s
character and weighed those considerations along with
mitigating statutory factors.” Commonwealth v. Devers, 519
Pa. 88, 101-02, 546 A.2d 12, 18 (1988).
Moury, 992 A.2d at 171.
Instantly, at sentencing, the trial court determined that Appellant
possessed a prior record score of five and an offense gravity score of five.
N.T., 3/4/16, at 7–8. The court proceeded to sentence Appellant to two and
one-half to five years of imprisonment for Endangering the Welfare of a
Child (“EWOC”). The trial court benefited from a presentence investigation,
N.T., 3/4/16, at 20; thus, we can presume that it considered all relevant
factors when imposing sentence. Moury, 992 A.2d at 171. From the
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presentence investigation report, the trial court gave particular consideration
to Appellant’s criminal history, which notably included statutory sexual
assault. N.T., 3/4/16, at 6, 20. Moreover, the trial court was compelled to
impose a sentence outside of the Sentencing Guidelines because this crime
was also of a sexual nature, and the court stated that Appellant’s prior
record score did not sufficiently integrate the serious crimes of his prior
record. Id. at 20. While Appellant minimizes the extent and severity of his
prior criminal behavior, Appellant’s Brief at 19, the trial court was under no
obligation to do likewise. The trial court properly weighed Appellant’s prior
record, the nature of those crimes, the nature of the instant offense,
Appellant’s recidivism, and the PSI report. All of those considerations are
permissible beyond the factors enumerated in the Sentencing Guidelines;
thus, we cannot agree that the court double-counted any factors.
Appellant next claims that the trial court relied on impermissible
factors when it imposed Appellant’s sentence. Appellant’s Brief at 12.
Specifically, Appellant alleged that the trial court impermissibly inferred that
the jury convicted Appellant of EWOC for his sex acts against the victim
rather than the corporal punishment Appellant inflicted upon the victim.
Appellant’s Brief at 20. This claim is belied by the record. The trial court
explicitly instructed the jury that this case concerned Appellant assaulting
the victim sexually and nothing else. N.T., 3/4/16, at 18–19. Thus, the jury
was informed that the sexual nature of the assault on the victim was the
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behavior that endangered the victim’s welfare, not the corporal punishment.
Accordingly, there was no improper inference.
Finally, Appellant alleges that the trial court abused its discretion by
failing to provide adequate justification for the sentence imposed.
Appellant’s Brief at 12. Section 9721(b) of the Sentencing Code requires the
trial court to include the reason or reasons for the sentence, particularly if it
is outside of the Sentencing Guidelines. McNabb, 819 A.2d at 57–58.
Here, the Sentencing Guidelines provide a minimum sentence of twelve to
eighteen months, plus or minus three months, for Appellant’s EWOC
conviction. 204 Pa.Code § 303.16. However, the court imposed a sentence
of two and one-half to five years, nine months beyond the aggravated
minimum sentence suggested by the Sentencing Guidelines. 204 Pa.Code
§ 303.16. Instantly, the trial court adequately described its rationale for
imposing a sentence outside of the Sentencing Guidelines.
THE COURT: All right. I’ve reviewed the presentence
report. I’ve listened to the arguments of counsel. I reviewed
the notes of testimony, especially my charge to the jury. I think
both sides, the DA and defense counsel, make good points.
It was a compromised verdict. That’s what jurors are
permitted to do. That’s why they have all those cases that say
inconsistent verdicts are still valid verdicts.
And I was correct when I told the jury that is a charge that
can include a wide range of conduct, but I think I also made it
clear to the jury that the allegation in this case was the sexual
assault, that it wasn’t anything else. The allegation is here that
the duty of care, protection or support means, among other
things, you can’t put your penis in her rectum.
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Right before I said that, I also said, in this case, the
allegation is that he penetrated her rectum; that’s how he
endangered her welfare.
And they were told that they had to find that beyond a
reasonable doubt. So I don’t think it’s a mystery what they
meant when they found him guilty of this. It was a weak jury
who couldn’t bring themselves to say guilty of other charges that
sound more serious.
This is not a Megan’s Law offense, right?
MS. GILLUM: Correct.
THE COURT: I don’t know if anybody on the jury
understood that. The foreman might’ve been well informed.
I don’t know what they were thinking, but I do know that
he doesn’t deserve a guilty, no further penalty sentence.
There’s absolutely nothing in the presentence report or in his
background that would justify that. The guideline range would
allow me to give him a county jail sentence or a state prison
sentence. The state prison sentence could be one-and-a-half to
something and still be in the guidelines. However, I find that his
prior record score understates the seriousness of his prior sexual
assault. And this is a sexual assault. So on the one count, I
sentence the defendant to two-and-a-half to five years in the
state correctional institution. He is not RRRI eligible. He has to
pay mandatory court costs. He’ll get credit for time served.
N.T., 3/4/16, at 18–20.
After review, we discern no abuse of discretion. The trial court did not
double-count factors already included in the Sentencing Guidelines, it did not
rely on impermissible factors when sentencing Appellant, and it provided
justification for Appellant’s sentence. Accordingly, we conclude that
Appellant is not entitled to relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2017
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