Com. v. A.G.

J-A19030-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
A.G., :
:
Appellant : No. 3547 EDA 2016

Appeal from the Judgment of Sentence September 6, 2016
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0002181-2014

BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 08, 2017

Appellant, A.G.,1 appeals from the Judgment of Sentence entered by

the Northampton County Court of Common Pleas following his conviction by

a jury of Indecent Assault of a Person Under 13 Years and Corruption of

Minors.2 After careful review, we affirm.

The relevant facts, as gleaned from the certified record and the trial

court’s Pa.R.A.P. 1925(a) Opinion, are as follows. On June 19, 2014,

Appellant was arrested and charged with Indecent Assault and Corruption of

Minors for his repeated sexual abuse of his granddaughter, M.G.

____________________________________________

1
In an effort to protect the victim’s privacy, we have redacted Appellant’s
name.
2
18 Pa.C.S. §§ 3126(a)(7) and 6301(a)(1).
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Appellant elected to proceed to a jury trial, where the Commonwealth

presented the testimony of, inter alia, the victim, her mother, and the

victim’s high school art teacher Megan Reenock (“Reenock”). Evidence

presented by the Commonwealth showed that Appellant’s sexual abuse of

his granddaughter took place over a six-year period while she was between

the ages of four and ten. Appellant would alternatively induce the victim’s

cooperation by promising rewards or threatening to kill her family members

if she told anyone about the abuse.

In his defense at trial, Appellant sought to persuade the jury that the

victim’s home life was troubled, and that she had fabricated the allegations

against Appellant “as a way to gain attention.” Appellant’s Brief at 16. He

elicited testimony from the victim, the victim’s mother, and Reenock on

cross-examination showing that the victim came forward with her allegations

during her parents’ contentious divorce, when she was so unhappy living

with her mother that she spent the Thanksgiving holiday with Reenock.

The jury was unpersuaded by Appellant’s theory, and on the second

day of their deliberations they convicted Appellant of Indecent Assault and

Corruption of Minors.

The trial court deferred sentencing and ordered a presentence

investigation (“PSI”), a psychosexual evaluation, and a Sexually Violent

Predator (“SVP”) Assessment. On September 6, 2016, the trial court held an

SVP hearing, where the trial court heard testimony from multiple witnesses

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for Appellant and the Commonwealth. Crediting the expert testimony of the

Commonwealth’s expert, the trial court concluded that, by clear and

convincing evidence, Appellant is an SVP pursuant to 42 Pa.C.S. § 9799.24.

The trial court went on to sentence Appellant to two consecutive terms of

twenty-four to sixty months of imprisonment, for an aggregate term of four

to ten years of imprisonment.

Appellant filed a Post-Sentence Motion challenging the discretionary

aspects of his sentence, and requesting a new trial based on various

allegations of trial court error and prosecutorial misconduct. The trial court

denied the Motion by Order filed November 7, 2016.

Appellant filed a timely Notice of Appeal on November 15, 2016. The

trial court and Appellant both complied with Pa.R.A.P. 1925.

On appeal, Appellant raises the following issues:

[1.] Did the trial court err in denying [] Appellant’s request for a
new trial based on [(i)] the court’s rulings during voir dire[; (ii)]
the court’s refusal to permit cross-examination into relevant
areas of inquiry[; (iii)] the improper closing argument by the
Commonwealth[;] and [(iv)] the undue emotional involvement of
all jurors in this case?

[2.] Should the [Superior] Court review [] Appellant’s challenge
to the discretionary aspects of his sentence where he has (a)
met the technical requirements for discretionary review under
Rule 2119(f)[,] and (b) raised a “substantial question” as to
whether the resentencing court abused its discretion?

[3.] The sentencing court imposed consecutive sentences of 24
to 60 months in state prison, more than twice the upper end of
the aggravated range. In so doing, the court discounted a
number of mitigating factors, including [] Appellant’s age and
declining health, familial and community support, and lack of

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prior criminal history. Should the [Superior] Court vacate this
de facto life sentence and remand the matter for re-sentencing
with instructions?

Appellant’s Brief at 4.

Appellant’s first issue is comprised of four discrete claims, which we

will address in turn.

Jury Selection

In his first issue, Appellant avers that the trial court erred during voir

dire by refusing to strike venirewoman number 20 (“Venirewoman 20”), and

in striking venirewoman number 37 (“Venirewoman 37”) for cause. Both

venirewomen disclosed that they had been the victims of sexual abuse.

The jury selection process is crucial to the preservation of a criminal

defendant’s right to an impartial jury explicitly guaranteed by Article I,

section 9 of the Pennsylvania Constitution. Commonwealth v. Ingber,

531 A.2d 1101, 1102 (Pa. 1987). Our courts “do not expect jurors to be

free from all prejudices, however; rather, the law requires them to be able

to put aside their prejudices and determine guilt or innocence on the facts

presented.” Commonwealth v. Smith, 540 A.2d 246, 256 (Pa. 1988).

See also Commonwealth v. Penn, 132 A.3d 498, 502 (Pa. Super. 2016)

(noting that the test of disqualification is the juror’s ability and willingness to

eliminate the influence of his or her scruples and render a verdict according

to the evidence). “The burden of proving that a venireman should be

excused for cause is on the challenger who must demonstrate that he or she

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possesses a fixed, unalterable opinion that would prevent him or her from

rendering a verdict based solely on the evidence and the law.” Smith,

supra at 256.

The decision whether to disqualify a venireperson “is to be made by

the trial judge based on the juror’s answers and demeanor and will not be

reversed absent a palpable abuse of discretion.” Penn, supra at 502.

(citation omitted).

In the instant case, Venirewoman 20 disclosed during voir dire that

she had been sexually abused by her uncle when she was a child. As the

trial court explained, “[Venirewoman] 20 gave credible responses indicating

that, while she felt some nervousness at the prospect of hearing the

testimony in this case, she could set aside her personal experiences and be

fair and impartial in hearing [Appellant’s] case. The [trial court] found

[Venirewoman] 20 to be honest and forthright about her hesitation, as well

as her assurance that she would be fair to [Appellant] and not allow her

experiences to color her verdict.” Trial Court Opinion, filed 11/7/16, at 3-4

(citing N.T.).

Our review of the record reveals that Venirewoman 20 repeatedly

assured the trial court that she “can be fair.” N.T., 4/4/16, at 75; see id. at

74, 76. The trial court, hearing her answers and observing her demeanor,

found Venirewoman 20 credible. We discern no “palpable abuse of

discretion” that would warrant reversing the trial court’s proper use of its

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discretion. Penn, supra at 502. Therefore, we conclude Appellant’s claim

regarding Venirewoman 20 is without merit.

Appellant’s claim regarding Venirewoman 37 is waived, as Appellant

failed to include it in his Pa.R.A.P. 1925(b) Statement. See

Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (“Any issues

not raised in a Pa.R.A.P. 1925(b) [S]tatement will be deemed waived.”). In

his Pa.R.A.P. 1925(b) Statement, Appellant specifically identified the trial

court’s ruling regarding Venirewoman 20, but made no mention of

Venirewoman 37. See Pa.R.A.P. 1925(b) Statement, filed 11/22/16, at 3

(“During voir dire, the [trial court] refused to strike [Venirewoman 20] for

cause despite compelling reasons for doing so, forcing [Appellant] to

exercise a peremptory challenge.”). Therefore, this claim is waived.

Even if Appellant had properly raised his challenge to Venirewoman

37, we would conclude it has no merit. Our review of the record indicates

good cause supported the trial court’s decision to strike Venirewoman 37.

During voir dire, Venirewoman 37 stated that she “had been the victim of

sexual assault by a boyfriend as a teen, indicated that she could not be fair

and impartial, insofar as her life experience would color her verdict, and

[stated that] she would be too emotional in considering the memories of her

own assault as she heard the evidence and attempted to render a verdict.”

Trial Court Opinion at 4. She indicated that she had already formed an

opinion regarding the victim’s credibility based on the victim’s delay in

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reporting the abuse. When asked if she could be fair, she initially stated “I

don’t know,” and later indicated that she did not think she could be fair and

impartial. N.T., 4/4/16 at 98-99. Based on her responses, the trial court

determined that Venirewoman 37 “would be unable to render a verdict

based solely upon the evidence and the law presented to her.” Trial Court

Opinion at 4. We discern no “palpable abuse of discretion” and, therefore,

would find this claim to be without merit if Appellant had properly preserved

it.

Cross-Examination of Reenock

In his second issue, Appellant avers that the trial court erred in

limiting the scope of his cross-examination of Reenock, the victim’s high

school art teacher, regarding statements the victim allegedly had made

about her contentious relationship with her mother.

Pennsylvania Rule of Evidence 611(b) addresses the scope of cross-

examination, stating: “Cross-examination of a witness other than a party in

a civil case should be limited to the subject matter of the direct examination

and matters affecting credibility, however, the court may, in the exercise of

discretion, permit inquiry into additional matters as if on direct

examination.” Pa.R.E. 611(b). See also Daniel J. Anders, Ohlbaum on the

Pennsylvania Rules of Evidence § 611.08[1] et seq. (2017 ed. LexisNexis

Matthew Bender). “Cross-examination may be employed to test a witness'

story, to impeach credibility, and to establish a witness's motive for

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testifying.” Commonwealth v. Chmiel, 889 A.2d 501, 527 (Pa. 2005)

(citation omitted).

“The scope of cross-examination is within the trial court's discretion,

and this Court cannot disturb the trial court's determinations absent a clear

abuse of discretion or an error of law.” Commonwealth v. Ramtahal, 33

A.3d 602, 609 (Pa. 2011) (citation omitted).

“In determining the scope of cross-examination the trial court may

consider ‘whether the matter is collateral, whether the cross-examination

would be likely to confuse or mislead the jury, and whether it would waste

time.’” Commonwealth v. Brinton, 418 A.2d 734, 736 (Pa. Super. 1980)

(citation omitted). However, even where a trial court errs in limiting the

scope of cross-examination, a defendant is not entitled to relief where:

(1) the error did not prejudice the defendant or the prejudice
was de minimis; (2) the erroneously admitted evidence was
merely cumulative of other untainted evidence which was
substantially similar to the erroneously admitted evidence; or (3)
the properly admitted and uncontradicted evidence of guilt was
so overwhelming and the prejudicial effect of the error was so
insignificant by comparison that the error could not have
contributed to the verdict.

Commonwealth v. Ballard, 80 A.3d 380, 398-99 (Pa. 2013).

In the instant case, Appellant sought to question Reenock about

whether the victim had accused her mother of specific instances of

misconduct, including drinking excessively and stealing money from the

victim’s purse. Appellant’s Brief at 16. Appellant argued that this testimony

was relevant to establish that the victim had a contentious relationship with

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her mother and, therefore, a motive to fabricate her grandfather’s sexual

abuse “as a way to gain attention.” Id.

The trial court determined that these specific instances of misconduct

should be excluded because, although “arguably relevant” to Appellant’s

defense theory, there was a “very high risk” that the evidence would confuse

and mislead the jury. Trial Court Opinion at 6-7. The victim’s mother also

testified on behalf of the Commonwealth, and the trial court concluded that

there was a “high danger” that the jury would misuse this information about

her alcohol use to improperly discredit her testimony. Id. See also

Commonwealth v. Sasse, 921 A.2d 1229, 1238 (Pa. Super. 2007)

(excluding testimony regarding a witness’s prior alcohol abuse and

promiscuity in light of the danger it would be used to improperly discredit

the witness’s testimony).

Moreover, as the trial court noted, Appellant was not prejudiced by the

trial court’s ruling, and the testimony would have been cumulative of the

myriad of other evidence Appellant presented to establish the strained

relationship between the victim and her parents.

[Appellant] was able to establish [his] defense [based on the
troubled relationship between the victim and her mother]
through various other testimony, however, including in
[Appellant’s] cross-examination of [the victim] herself, in which
she testified that her parents were going through a very bitter
divorce during which her mother had accused her father of an
affair, that [the victim] made complaints to others about her
mother, and that [the victim] was unhappy living with her
mother. . . . Furthermore, on cross-examination of [] Reenock,
[Appellant] established that [the victim] was upset about her

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relationship with her mother, that [the victim] felt she was alone
at home a lot, and that the relationship between [the victim] and
her family was sufficiently strained that [the victim] spent
Thanksgiving 2013 at the home of [] Reenock, her teacher,
rather than with her own family. All of this testimony, taken
together, did tend to establish that [the victim] had a troubled
relationship with her family at the time just prior to the
revelation of her abuse by [Appellant]. [Appellant] was not
precluded from establishing this defense.

Trial Court Opinion at 5-6 (record citations omitted).

After a careful review of the record, we conclude that the trial court

did not abuse its discretion in finding an undue risk that the jury would be

confused or misled by Reenock reporting the victim’s hearsay complaints

about specific instances of her mother’s misconduct.3 Moreover, we agree

with the trial court that Appellant was not prejudiced by the trial court’s

ruling.

Prosecutorial Misconduct

In his third issue, Appellant avers that the Commonwealth’s attorney

committed prosecutorial misconduct during his closing argument. Namely,

he asserts that the prosecutor sought to improperly inflame the passions of

the jury when he said:

These crimes happen in secret. These perpetrators do it to get
away with it. Do you want anybody in your community knowing
you’re a child molester?
____________________________________________

3
As the Commonwealth notes, Appellant does not argue a hearsay
exception that would permit Reenock to testify to statements that the victim
made accusing her mother of drinking too much or taking money from her
purse. Commonwealth’s Brief at 11.

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Appellant’s Brief at 17-18. See also N.T., 4/6/16, at 19. Appellant waived

this claim by failing to object to the comments at trial.

Our Pennsylvania Rules of Appellate Procedure and our case law

provide the well-established requirements for preserving a claim for

appellate review. It is axiomatic that “[i]ssues not raised in the lower court

are waived and cannot be raised for the first time on appeal.” Pa.R.A.P.

302(a). “The absence of a contemporaneous objection below constitutes a

waiver” of the claim on appeal. Commonwealth v. Powell, 956 A.2d 406,

423 (Pa. 2008). This preservation requirement extends to allegations of

prosecutorial misconduct during closing arguments. See Commonwealth

v. Butts, 434 A.2d 1216, 1219 (Pa. 1981) (finding waiver of prosecutorial

misconduct claim where defendant failed to object during or immediately

after closing arguments); Commonwealth v. Adams, 39 A.3d 310, 319

(Pa. Super. 2012) (same).

In the instant case, Appellant failed to object to the prosecutor’s

comments during the Commonwealth’s closing argument or thereafter. This

claim is, therefore, waived.4

____________________________________________

4
Moreover, the prosecutor’s statement, that people who sexually abuse
children do so in secret, was a fair response to Appellant’s argument in
closing that community members who testified as character witnesses on
Appellant’s behalf had not seen “signs” of the abuse. See Commonwealth
v. Chmiel, 30 A.3d 1111, 1181 (Pa. 2011) (explaining that prosecutors are
permitted to “provide fair rebuttal to defense arguments” even if the fair
rebuttal might be “otherwise improper[.]”).

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“Undue” Emotional Involvement of the Jury

In his fourth issue, Appellant avers that “his trial was infected by

extreme emotions that prevented the jury from reaching a dispassionate

result based solely on the evidence.” Appellant’s Brief at 18-19.

In particular, Appellant points to an incident that occurred at the close

of the first day of the jury’s deliberations, when the trial court brought the

jury into the courtroom and stated:

I received word that you felt that you were at an impasse and
that you were hoping to go home for the evening and that’s fine
with me. I understand that emotions are running high, some
people have been visibly upset by this process, it’s been a
difficult process and it’s an important case.

N.T., 4/6/16, at 78. Outside the presence of the jury, Appellant inquired

into the trial court’s comments, and the trial court informed the parties that

a member of the court’s staff had seen two of the jurors crying in the

bathroom. Id. at 80-81.

During that discussion, Appellant did not object in any way or request

that the court declare a mistrial based on the “extreme emotions” of the

jurors. Nor did he raise the issue with the trial court when they returned the

next morning to continue deliberations.

As discussed supra, any issue not timely raised before the trial court

is deemed waived. In the instant case, Appellant elected to sit silently and

permit the jury to render their verdict, and only complained of the jurors’

overly-emotional states when the jury rendered a verdict that was not in his

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favor. We conclude that Appellant waived this claim when he failed to raise

an objection or request a mistrial in a timely manner.

Discretionary Aspects of Sentence

Appellant’s final two claims are a single challenge to the discretionary

aspects of his sentence. In particular, he avers that the sentence of four to

ten years’ incarceration imposed by the trial court is “an unduly punitive de

facto life sentence” that “disproportionately emphasizes the gravity of these

ugly but not atypical crimes[.]” Appellant’s Brief at 22-23.

A challenge to the discretionary aspects of sentencing is not

automatically reviewable as a matter of right. Commonwealth v. Hunter,

768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a

discretionary sentencing issue:

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

omitted).

In the instant case, Appellant has satisfied the first three requirements

by filing a timely Notice of Appeal, properly preserving the issue in a Post-

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Sentence Motion to modify his sentence, and by including a Rule 2119(f)

Statement in his Brief to this Court.

As to whether Appellant has presented a substantial question, we

note:

The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. A substantial
question 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. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations

and quotation marks omitted).

The Commonwealth concedes that Appellant’s claim—that the trial

court imposed a manifestly excessive sentence when it imposed two

consecutive terms, each more than twice the aggravated range of the

Sentencing Guidelines—raises a substantial question.5 We agree.

____________________________________________

5
In his Brief, Appellant makes passing reference to a number of other claims
regarding his sentence, none of which he develops or supports with
references to case law in any way. See, e.g., Appellant’s Brief at 28-29
(arguing that the trial court’s sentence “indirectly punishes” Appellant’s
family by “permanently depriving them of [Appellant’s] presence”). To the
extent these claims are distinct from Appellant’s general claim that his
sentence is manifestly excessive as “disproportionate” to the offense
committed, these claims are waived. See Commonwealth v. Charleston,
94 A.3d 1012, 1021 (Pa. Super. 2014) (finding waived claimed that an
appellant fails to properly develop in his Brief as required by the rules of this
Court); see also Pa.R.A.P. 2119(b) (requiring citations of legal authorities).

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Accordingly, we turn to the merits of Appellant’s claim, mindful of our

standard of review:

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, the 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. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation

omitted).

Appellant avers that the sentence imposed was “manifestly excessive”

and “disproportionate” to what he considers a “common” fact pattern.

Appellant’s Brief at 30. According to Appellant, the Sentencing Guidelines

adequately address all relevant factors in the instant case, and the

sentencing court therefore erred by deviating above the aggravated range.

Id. at 31.

Where a trial court imposes a sentence outside of the sentencing

guidelines, 42 Pa.C.S. § 9721(b) requires the trial court to provide, in open

court, a “contemporaneous statement of reasons in support of its sentence.”

Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012). To

satisfy the requirements of Section 9721(b), the trial court must:

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

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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.

Id. (brackets and citation omitted).

The on-the-record disclosure requirement does not require the trial

court to make “a detailed, highly technical statement.” Commonwealth v.

Hunzer, 868 A.2d 498, 514 (Pa. Super. 2005). Where the trial court has

the benefit of a presentence investigation (“PSI”), this C has held that “it is

presumed that the court is aware of all appropriate sentencing factors and

considerations, and that where the court has been so informed, its discretion

should not be disturbed.” Commonwealth v. Ventura, 975 A.2d 1128,

1135 (Pa. Super. 2009) (discussing Commonwealth v. Devers, 546 A.2d

12, 18-19 (Pa. 1988)). Where the trial court has reviewed the PSI, it may

properly “satisfy the requirement that reasons for imposing sentence be

placed on the record by indicating that he or she has been informed by the

[PSI]; thus properly considering and weighing all relevant factors.” Id.

Finally, where the trial court deviates above the guidelines, this Court

may only vacate and remand a case for resentencing if we first conclude that

“the sentencing court sentenced outside the sentencing guidelines and the

sentence is unreasonable.” 42 Pa.C.S. § 9781(c)(3). Although the

Sentencing Code does not define the term “unreasonable,” our Supreme

Court has made clear that “rejection of a sentencing court's imposition of

sentence on unreasonableness grounds [should] occur infrequently, whether

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the sentence is above or below the guideline ranges, especially when the

unreasonableness inquiry is conducted using the proper standard of review.”

Commonwealth v. Walls, 926 A.2d 957, 964 (Pa. 2007).

Prior to imposing sentence in the instant case, the trial court

acknowledged the Sentencing Guidelines, but concluded that they were

inappropriate under the circumstances. The court provided the following

lengthy statement, on the record, explaining its decision:

I do recognize that your age, perhaps, makes you less likely to
offend again, but it gives me no assurances whatsoever that if
you were given the opportunity to remain out on the streets,
that you would not do this to another young person.

The experts tell me that you are a pedophile and you cannot
help yourself. The experts tell me that you are [at] risk to re-
offend. You heard the expert . . . indicate that even if you were
in a hospital bed or immobile and unable to get around, she
would still be concerned about you re-offending when your
grandchildren or other young people are brought to your room.

When I think about what you did to your granddaughter, it is so
disturbing and I can completely understand her parents’ feelings
that they failed to protect her. And yet, they should never have
had to be concerned that when they brought their child to her
grandfather’s home, that you would do the things that you did to
her. And you didn’t just do it once. You did it over a course of
years and you groomed her and you rewarded her with simple
things that a 4 year old might enjoy, like the idea that you would
make her Jello after you had her in your bedroom and you
touched her inappropriately.

The fact that you gained access to her by having her father come
over and mow your lawn and the fact that you would accuse her
and her family of making all of this up for some financial gain is
just ludicrous.

I understand and I respect your right to exercise your right to a
trial, and I would never impose a harsher sentence because
somebody elected to exercise their constitutional rights. But you

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have been convicted now and you still show no remorse
whatsoever for your conduct, and that also gives me great
concern about your ability to undergo any kind of treatment and
actually put yourself in a position that you would not be a threat
to the public.

***

I believe that a sentence of at least the aggravated range is
appropriate here, and that there are many aggravating factors.

The charge only requires proof that you committed indecent
assault of a person under 13 years of age. [The victim’s] abuse
started when she was 3 or 4 years of age, so I find that
particularly young age to be an aggravating factor.

Your relationship to your victim being her grandfather, and the
fact that she was particularly vulnerable, I find that to be an
aggravating factor.

As I have previously indicated, your complete lack of remorse I
find to be an aggravating factor.

The impact that you have had on your granddaughter and what
she continues to go through and suffer because of what you did
to her many, many times over a number of years, I find that to
be an aggravating factor.

I have concluded that the guideline ranges simply do not
adequately address the serious nature of these crimes, and I
would find that a lesser sentence would depreciate the serious
nature of the crimes and that you are in need of correctional
treatment that can best be served in a state correctional
institution.

N.T., 9/6/16, at 89-92.

Moreover, regarding Appellant’s claim that the Sentencing Guidelines

already account for all relevant factors in the instant case, the trial court

disagreed.

While [Appellant’s] conviction for the crimes charged required
proof that his victim was under the age of 13, that he engaged

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in the touching of his victim’s intimate parts, and that he did so
over a course of time, the crimes charged do not require a
showing that [Appellant] was in a position of authority over his
victim, that he had a particular position of trust as her
grandfather that he abused, that [the victim] was only four
years old at the time that the conduct began, that the conduct
occurred over a period of six years, or that he threatened to kill
[the victim’s] family if she revealed the abuse. Accordingly, the
guideline ranges did not take these factors into account and,
given the facts of this case, a sentence within the guideline
ranges—even in the aggravated range—would have depreciated
the seriousness of [Appellant’s] crimes.

The imposition of a sentence outside of the guideline ranges was
further warranted by [Appellant’s] lack of remorse and his
likelihood of reoffending, both evidencing the necessity of a
lengthy sentence in order to meet his rehabilitative needs. While
it is perhaps unfortunate that [Appellant’s] advanced age and
physical impairments will make his incarceration more difficult,
[Appellant] is not entitled to a lesser sentence simply because
his crimes were not revealed and brought to trial until he
reached his present age.

Trial Court Opinion at 13-14.

Based on all of the foregoing, we conclude that the trial court did not

abuse its discretion in imposing a sentence in excess of the aggravated

range of the Sentencing Guidelines. Although the sentences imposed on

each count significantly exceeded the Sentencing Guidelines, the aggregate

sentence was not unreasonable.

Judgment of Sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/8/2017

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