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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
RASHON A. MARSHALL :
: No. 1014 MDA 2017
Appellant
Appeal from the Judgment of Sentence May 24, 2017
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0004873-2015
BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS*, P.J.E.
MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 18, 2017
Appellant, Rashon A. Marshall, appeals from the judgment of sentence
entered in the Court of Common Pleas of Berks County following his conviction
at a bench trial on the charges of aggravated assault, endangering the welfare
of a child, simple assault, and recklessly endangering another person.1 After
a careful review, we affirm Appellant’s judgment of sentence, in part, and
vacate, in part.
Appellant was arrested in connection with the physical abuse of his
minor daughter, A.S.M. (“Victim”), and represented by counsel, he proceeded
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1 18 Pa.C.S.A. §§ 2702(a)(9), 4304(a)(1), 2701(a)(1), and 2705,
respectively. Appellant was acquitted of aggravated assault under 18
Pa.C.S.A. § 2702(a)(1).
____________________________________
* Former Justice specially assigned to the Superior Court.
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to a bench trial on May 24, 2017. The trial court has summarized the evidence
presented at trial as follows:
[Appellant], Brittany Smith (“Smith”), and their daughter
(Victim), lived together at 415 16th Street (“the Residence”) in the
City of Reading. [N.T., 5/24/17,] at 7. On July 30, 2015, the
childcare arrangement was for Smith to go to work, while
Appellant was to take care of Victim. Id. at 6. Victim was one
years old at the time. Id. at 8. Prior to Smith’s departure, Victim
was “[n]ormal, happy, playful, [and] smiling.” Id. However,
Victim became “cranky” and started to cry when Smith left at 8:15
a.m. Id. at 22. There was no smell of alcohol on Victim’s breath
at this time. Id. at 23.
Soon after Smith arrived at work, Smith received a call from
Appellant stating that Victim had fallen and that he was calling
emergency services. Id. at 11. At 8:43 a.m., emergency services
arrived at the Residence. Id. at 50. At this time, according to
paramedic Scott Wentzel, Victim was unconscious. Id. at 49.
Appellant told the paramedic that he found Victim lying downstairs
on the sofa in this condition. Id. at 51. Victim was rushed to the
hospital and intensive medical care began. Id. at 29.
At the hospital, Victim was attended to by Dr. Ankit Shah.
Id. at 30. The doctor stated that, at her arrival, Victim was
unresponsive to painful stimuli and was struggling to breathe. Id.
at 31. There were no initial signs of trauma, however, once Victim
was put on the ventilator and given fluids bruising started to
develop on her chest. Id. Additionally, a blood test revealed a
blood alcohol content of .06%. Id. at 33, 61. Once Victim was
stabilized[,] she was medevacked to Children’s Hospital in
Philadelphia. Id. at 33-35.
At Children’s Hospital, on July 31, 2015, Dr. Carla Parkin-
Joseph was one of Victim’s physicians, and at trial, [she] was
qualified as an expert in child abuse. Id. at 58-59. From medical
tests and her examination, she observed that Victim had ligament
injuries and a broken artery in her neck. Id. at 62. The broken
artery could have resulted in a stroke, but did not. Id. The doctor
also stated that Victim had bruising to her chest, bruising to her
spleen, and a laceration to her liver. Id. at 62-64. The liver
laceration caused bleeding into the abdomen and was considered
life threatening. Id. at 62-63. In the expert opinion of Dr. Parkin-
Joseph, these injuries, in their totality, were not the result of
medical treatment or falling from a couch. Id. at 64-68. The
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injuries were the result of non-accidental trauma or physical
abuse. Id. Moreover, significant monitoring has been required
for Victim to heal from the injuries [she] sustained. Id. at 67.
Contemporaneous with Victim’s medical treatment,
Detective Christopher Santoro made contact with Appellant. Id.
at 73. He and his supervisor suspected that Victim’s injuries were
the result of child abuse. Id. During initial questioning, Appellant
was asked what caused Victim’s injuries. Id. at 75. In response,
he stated that Victim was acting normally and sitting on the couch
until suddenly she slumped over and became unresponsive. Id.
He denied striking [Victim]. Id. at 76. The next day, Appellant
modified his story to state [that] the day prior to Victim’s injuries
he tapped Victim’s stomach as a reaction to her misbehaving, but
that she was not hurt. Id. at 77. Then, on August 3, 2015,
Appellant added to his story that he tapped Victim on the stomach
three times just prior to the incident. Id. at 80. He recalled to
the detective that about 30 seconds later Victim became limp. Id.
However, Appellant stated that he thought the injury may have
been caused by him slamming on the breaks in his automobile,
while Victim was a passenger. Id. at 82. No other witnesses
could support Appellant’s version of events. Id.
Appellant was then charged and incarcerated prior to trial.
During his incarceration, he made several phone calls to Smith.
Id. at 18. His calls were legally recorded and played at trial.
Relevant instantly, Appellant stated that he didn’t do this on
purpose, but does not clarify what he did. Id.
Trial Court Opinion, filed 8/2/17, at 3-4.
At the conclusion of the bench trial, the trial court convicted Appellant
of the offenses indicated supra, and on that same date, after Appellant
indicated he was prepared to proceed to sentencing, the trial court held a
sentencing hearing. At the conclusion of the hearing, the trial court relevantly
sentenced Appellant as follows:
[For aggravated assault], [Appellant] is committed for a
period of not less than 9 [years] nor more than 18 years to the
Bureau of Corrections; He is not RRRI eligible; [Appellant] shall
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have no contact with persons under the age of 18 except that he
may have supervised contact with his daughter.
[For endangering the welfare of a child], [Appellant] is
placed on probation for a period of 5 years under the supervision
of the Pennsylvania Board of Parole; Probation shall commence at
the expiration of the order imposed [for aggravated assault].
N.T., 5/24/17, at 103-04. The trial court determined the remaining
convictions merged for sentencing purposes, and thus, the trial court imposed
no further penalty.
Appellant filed a timely post-sentence motion, which the trial court
denied on June 5, 2017. This timely appeal followed, and all Pa.R.A.P. 1925
requirements have been met.
On appeal, Appellant presents the following issues:
I. Whether the evidence presented at trial with regard to [ ]
aggravated assault was insufficient to prove beyond a
reasonable doubt that Appellant attempted to cause or
intentionally, knowingly, or recklessly caused serious bodily
injury to a child less than 13 years of age?
II. Whether the evidence presented at trial with regard [to]
endangering the welfare of a child was insufficient to prove
beyond a reasonable doubt that Appellant knowingly
endangered the welfare of the child by violating a duty of
care, protection, or support?
III. The verdicts of guilty to [ ] aggravated assault and [ ]
endangering the welfare of [a child] were contrary to the
weight of the evidence presented at trial.
IV. Whether the court erred and imposed an illegal sentence by
including a special condition on [ ] aggravated assault,
barring Appellant from contact with persons under the age
of 18 and allowing only supervised contact?
V. [Whether] [t]he trial court erred and abused its discretion
in imposing an aggravated range sentence of not less than
9 years nor more than 18 years incarceration, without giving
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adequate reasons for justifying an aggrevated [sic] range
sentence?
Appellant’s Brief at 8.2
In his first and second issues, Appellant contends the evidence was
insufficient to sustain his convictions for aggravated assault and endangering
the welfare of a child. With regard to aggravated assault, Appellant does not
dispute that Victim sustained serious bodily injury; however, he suggests that
the evidence fails to establish how Victim sustained her injuries or that
Appellant was responsible for Victim’s injuries. With regard to endangering
the welfare of a child, Appellant suggests the evidence fails to establish that
he “knowingly” endangered the welfare of Victim since, when he “tapped” her,
he did not do so with the intention of harming her.
Our review of a challenge to the sufficiency of the evidence is guided by
the following:
There is sufficient evidence to sustain a conviction when the
evidence admitted at trial, and all reasonable inferences drawn
therefrom, viewed in the light most favorable to the
Commonwealth as verdict-winner, are sufficient to enable the
fact-finder to conclude that the Commonwealth established all of
the elements of the offense beyond a reasonable doubt. The
Commonwealth may sustain its burden “by means of wholly
circumstantial evidence.” Further, we note that the entire trial
record is evaluated and all evidence received against the
defendant is considered, being cognizant that the trier of fact is
free to believe all, part, or none of the evidence.
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2 We have renumbered Appellant’s issues.
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Commonwealth v. Martin, 627 Pa. 623, 101 A.3d 706, 718 (2014) (citation
omitted).
Subsection 2702(a)(9) of the aggravated assault statute provides that
a person is guilty of aggravated assault if he “attempts to cause or
intentionally, knowingly or recklessly causes serious bodily injury to a child
less than 13 years of age, by a person 18 years of age or older.” 18 Pa.C.S.A.
§ 2702(a)(9). Subsection 4304(a)(1) pertaining to endangering the welfare
of a child provides that “[a] parent, guardian or other person supervising the
welfare of a child under 18 years of age, or a person that employs or
supervises such a person, commits an offense if he knowingly endangers the
welfare of the child by violating a duty of care, protection or support.” 18
Pa.C.S.A. § 4304(a)(1). This Court has established a three-part test for
determining whether the elements of endangering the welfare of a child have
been met:
(1) the accused was aware of his duty to protect the child; (2) the
accused was aware that the child was in circumstances that could
threaten the child’s physical or psychological welfare; and (3) the
accused has either failed to act or has taken action so lame or
meager that such actions cannot reasonably be expected to
protect the child’s welfare.
Commonwealth v. Bryant, 57 A.3d 191, 197 (Pa.Super. 2012) (citations
omitted).
Viewing the evidence in the light most favorable to the Commonwealth,
as verdict winner, the evidence reveals that Victim was injured sometime
between 8:15 a.m. (when Smith left for work) and 8:43 a.m. (when
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emergency personnel arrived). During this time, Appellant was the only other
person in the house with Victim, who suffered a “significant trauma.”
Appellant eventually admitted to police that he “tapped” Victim three times on
the stomach; however, Dr. Parkin-Joseph testified that such “tapping” would
not have caused the severe injuries to Victim. Rather, she opined Victim’s
injuries were due to “non-accidental trauma or physical abuse.”
The circumstantial evidence in this case supports the conclusion that
Appellant was the perpetrator of the significant trauma to Victim, which was
caused by “non-accidental trauma or physical abuse.” Contrary to Appellant’s
assertion, the Commonwealth was permitted to utilize circumstantial evidence
in meeting its burden of proof. See Commonwealth v. Bruce, 916 A.2d 657
(Pa.Super. 2007). Thus, the evidence was sufficient to sustain Appellant’s
conviction for aggravated assault under Subsection 2702(a)(9) and
endangering the welfare of a child under Subsection 4304(a)(1).
In his next issue, Appellant contends the trial court’s verdicts of guilt as
to aggravated assault and endangering the welfare of a child are contrary to
the weight of the evidence.3 Specifically, he contends the evidence reveals
that, after Victim was injured, he displayed conduct indicative of a non-guilty
conscience, including calling 911, cooperating with the authorities, and
traveling to the hospital. Further, he suggests the evidence reveals “Victim’s
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3Appellant presented his weight of the evidence claim in his post-sentence
motion.
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injuries may have occurred on the hospital ride to [Children’s Hospital of
Philadelphia].” Appellant’s Brief at 29.
Our standard of review of a weight of the evidence claim was explained
in Commonwealth v. Konias, 136 A.3d 1014, 1022 (Pa.Super. 2016), as
follows:
When we review a weight-of-the-evidence challenge, we do not
actually examine the underlying question; instead, we examine
the trial court’s exercise of discretion in resolving the challenge.
This type of review is necessitated by the fact that the trial judge
heard and saw the evidence presented. Simply put, [o]ne of the
least assailable reasons for granting or denying a new trial is the
lower court’s conviction that the verdict was or was not against
the weight of the evidence and that a new trial should be granted
in the interest of justice. A new trial is warranted in this context
only when the verdict is so contrary to the evidence that it shocks
one’s sense of justice and the award of a new trial is imperative
so that right may be given another opportunity to prevail.
Id. at 1022 (citations, quotation marks, and quotations omitted).
In rejecting Appellant’s weight of the evidence claim in the case sub
judice, the trial court indicated that it found Dr. Parkin-Joseph’s testimony to
be credible, particularly her opinion that Victim’s injuries were caused by “non-
accidental trauma or physical abuse” (as opposed to being transported to the
hospital). Trial Court Opinion, filed 8/2/17, at 12. We are bound by the trial
court’s credibility determination in this regard. See Konias, supra.
Further, the fact Appellant may have been remorseful after he physically
abused Victim does not render the evidence of his guilt against the weight of
the evidence. Additionally, contrary to Appellant’s assertion, the trial court
found that Appellant did not, in fact, cooperate fully with authorities following
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Victim’s injuries in that he offered no legitimate reason for the substantial
injuries suffered by Victim during the half hour she was alone with Appellant.
This finding was within the fact-finder’s province, as was the inference to be
drawn therefrom. See Konias, supra. As Appellant has not convinced us
that the trial court abused its discretion in rejecting Appellant’s weight of the
evidence claim, we conclude that he is not entitled to relief. See id.
In his next issue, Appellant contends the trial court imposed an illegal
sentence with regard to his conviction for aggravated assault. Specifically,
citing to Commonwealth v. Mears, 972 A.2d 1210 (Pa.Super. 2009), he
argues the trial court placed an illegal condition on his prison sentence;
namely, that he be barred from contact with persons under the age of 18 with
the exception that he may have supervised contact with his daughter. We are
constrained to agree.
Initially, we note that, since Appellant’s issue ultimately concerns the
statutory authority for the imposition of a condition of sentence, it is a
challenge to the legality of the sentence. See id.; Commonwealth v. Pinko,
811 A.2d 576 (Pa.Super. 2002) (“The issue of whether the trial court
possessed the authority to impose a particular sentence implicates the legality
of the sentence.”).
The scope and standard of review applied to determine the legality
of a sentence are well established. If no statutory authorization
exists for a particular sentence, that sentence is illegal and subject
to correction. An illegal sentence must be vacated. In evaluating
a trial court’s application of a statute, our standard of review is
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plenary and is limited to determining whether the trial court
committed an error of law.
Commonwealth v. Leverette, 911 A.2d 998, 1001-02 (Pa.Super. 2006)
(citations omitted).
In Mears, the appellant was convicted of violating the Uniform Firearms
Act, and he was sentenced to a term of thirty months to sixty months in prison
for count one (less one day) and twenty-four to forty-eight months in prison
for count two. The trial court “conditioned the appellant’s parole or probation
on his consent to random searches by the Gun Violence Task Force.” Mears,
972 A.2d at 1211.
On appeal, the appellant in Mears challenged whether the trial court
had the authority to direct random searches of the appellant’s residence as a
condition of parole. In ruling that the trial court had no such authority, this
Court relevantly held as follows:
First, we note that the trial court did not sentence [the]
appellant to probation; thus, there can be no probation conditions.
Secondly, because the court sentenced [the] appellant to a
maximum term of incarceration of two or more years, [the]
appellant’s parole would be under the exclusive supervision of the
Pennsylvania Board of Probation and Parole (“PBPP”) and not the
Court of Common Pleas. 61 P.S. § 331.17, and see
Commonwealth v. Camps, 772 A.2d 70, 74 (Pa.Super. 2001)
(holding that “[I]t is well settled that the Pennsylvania Board of
Probation and Parole has exclusive authority to determine parole
when the offender is sentenced to a maximum term of
imprisonment of two or more years [.]”). Therefore, any condition
the sentencing court purported to impose on [the] appellant's
state parole is advisory only. See 61 P.S. § 331.18.
***
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After careful consideration, we are constrained to conclude
that the portion of the sentence ordering random searches is of
no legal force, as the trial court was without the authority to
impose this condition. Any special condition of parole will be under
the jurisdiction of the PBPP. Hence, the portion of [the]
appellant's sentence that ordered random searches is vacated.
Mears, 972 A.2d at 1212.
In the case sub judice, in addressing Appellant’s challenge to the special
condition, the trial court indicated the following:
Appellant avers that the [trial] court’s sentencing order
limiting him to supervised visits with his daughter and imposing a
“no contact” provision with all other persons under the age of
eighteen was [in error]. He elaborates that imposing these special
conditions was not within the [trial] court’s authority, but the
authority of the Pennsylvania Board of Probation and Parole.
Adding, that the provisions we ordered are merely advisory. After
reviewing this argument, we are constrained to agree that the
[trial] court exceeded its authority by imposing the
aforementioned special sentencing conditions. A [trial] court may
impose special sentencing conditions in two limited circumstances,
which are not present here.
First, a [trial] court may impose special sentencing
conditions during a sentence of probation. . .[where the
conditions] are “reasonably calculated to aid in the defendant’s
rehabilitation.]” [However,] [i]nstantly, all special sentencing
conditions imposed were on the period of incarceration. Though
Appellant was sentenced to a period of probation, no special
sentencing conditions were imposed on this sentence. As such,
this authority did not permit the [trial] court to impose these
special conditions during sentencing.
Second, the [trial] court may impose special conditions on
a period of incarceration when statutory authority permits.
However, if no statutory authority exists the sentence is subject
to correction. Instantly, the Legislature is silent in regards to the
imposition of special conditions for aggravated assault. Therefore,
the [trial] court does not have statutory authority for the
imposition of the aforementioned special conditions and the
sentence is subject to correction.
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Furthermore, a [trial] court lacks the authority to impose
special conditions on a period of parole. The Pennsylvania Board
of Probation and Parole has exclusive authority in these matters[.]
Trial Court Opinion, filed 8/2/17, at 6-7 (citations omitted).
Here, Appellant was sentenced to a maximum term of imprisonment of
two years or more for aggravated assault. Thus, we agree with the trial court
that it was without the authority to impose the special terms upon Appellant’s
prison sentence and/or as a condition of possible parole.4 See Camps, 772
A.2d at 74 (“[I]t is well settled that the Pennsylvania Board of Probation and
Parole has exclusive authority to determine parole when the offender is
sentenced to a maximum term of imprisonment of two or more years[.]”).
Thus, we vacate the “no contact”/supervised contact condition placed on
Appellant’s prison sentence as it is a legal nullity. Commonwealth v.
Coulverson, 34 A.3d 135, 141 (Pa.Super. 2011) (holding that the trial court’s
imposition of a “no contact” restriction with the victims, their families, and
friends following release on parole exceeded the court’s lawful authority where
the appellant was sentenced to a maximum period of incarceration of two
years or more, and thus, this Court vacated this portion of the sentence).
However, as our disposition does not otherwise impact the sentence imposed
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4 Although not dispositive, we note that the Commonwealth agrees the trial
court exceeded its authority in attempting to place a condition on Appellant’s
prison sentence and parole. See Commonwealth’s Brief at 7, 9-10.
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upon Appellant, and in particular, the term of incarceration, we need not
remand for re-sentencing. See Mears, supra.
In his final issue, Appellant contends the trial court erred in imposing a
sentence in the aggravated range for aggravated assault without considering
the factors set forth in 42 Pa.C.S.A. § 9721(b) and providing adequate reasons
on the record for the aggravated range sentence. Appellant’s claims present
a challenge to the discretionary aspects of his sentence. See Commonwealth
v. Cartrette, 83 A.3d 1030 (Pa.Super. 2013) (en banc) (explaining claim
sentencing court failed to consider Section 9721(b) factors pertains to
discretionary sentencing matters); Commonwealth v. Fullin, 892 A.2d 843
(Pa.Super. 2006) (holding claim sentencing court erred in failing to state on
the record the reasons for imposition of aggravated range sentence pertains
to discretionary aspects of sentencing).
A challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right. Commonwealth v. Hunter,
768 A.2d 1136 (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.A. § 9781(b).
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Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006) (citations
omitted).
Here, Appellant filed a timely notice of appeal and a timely post-
sentence motion in which he adequately preserved his discretionary aspect of
sentencing claims. Further, Appellant included a separate Pa.R.A.P. 2119(f)
statement in his brief. As to whether Appellant has presented a substantial
question, we note the following:
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) (citation,
quotation marks, and quotation omitted).
“This Court has previously found a substantial question to be raised
where an appellant alleged that the sentencing court. . .failed to consider
relevant sentencing criteria, including the protection of the public, the gravity
of the underlying offense and the rehabilitative needs of appellant [as provided
for in 42 Pa.C.S.A. § 9721(b)].” Commonwealth v. Serrano, 150 A.3d 470,
473 (Pa.Super. 2016) (citation omitted). “[Further,] [t]he failure to set forth
adequate reasons for the sentence imposed has been held to raise a
substantial question.” Commonwealth v. Macias, 968 A.2d 773, 776
(Pa.Super. 2009) (citation omitted). Accordingly, we find that Appellant has
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raised a substantial question and will proceed to review the merits of his
claims.
It is well-settled 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. 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. Gonzalez, 109 A.3d 711, 731 (Pa.Super. 2015)
(quotation omitted).
42 Pa.C.S.A. § 9721(b), pertaining to sentencing generally, relevantly
provides:
(b) General standards.—[T]he court shall follow the general
principle that the sentence imposed should call for 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.
. . .In every case in which the court imposes a sentence for a
felony or misdemeanor. . . the court shall make as a part of the
record, and disclose in open court at the time of sentencing, a
statement of the reason or reasons for the sentence imposed.
42 Pa.C.S.A. § 9721(b) (bold in original).
Nevertheless, “[a] sentencing court need not undertake a lengthy
discourse for its reasons for imposing a sentence or specifically reference the
statute in question[.]” Commonwealth v. Crump, 995 A.2d 1280, 1283
(Pa.Super. 2010). “Rather, the record as a whole must reflect the court’s
reasons and its meaningful consideration of the facts of the crime and the
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character of the offender.” Commonwealth v. Malovich, 903 A.2d 1247,
1253 (Pa.Super. 2006) (citation omitted).
In the case sub judice, the trial court specifically stated on the record
that it reviewed a pre-sentence investigation report, and the Commonwealth
recited Appellant’s prior record score, offense gravity score, and the applicable
sentencing guideline ranges for the trial court’s consideration. N.T., 5/24/17,
at 95-97. The Commonwealth reminded the trial court of the severity of
Victim’s injuries, as well as the fact that Appellant has a history of violence
and anger management issues. Id. at 98. Defense counsel argued for
leniency, noting that Appellant’s prior crimes were more than ten years old.
Id. at 100. The trial court permitted Appellant to make a statement, and
Appellant stated, “I just want to be able to get home to my daughter and my
family.” Id. at 101.
The trial court then stated on the record the following reasons for its
sentence:
I have taken into account many things, not limited to the
testimony that I’ve heard here today.
I’ve taken into account the evidentiary findings that I made
during the course of the trial, which I outlined at the outset of our
afternoon proceeding here.
I’ve also taken into account, and thank God, the fact that
the victim in the case, apparently, has had a good recovery,
certainly [a] better one than probably anyone could have possibly
expected under the circumstances. That does not diminish the
fact of the severity of her injuries, but, nevertheless, is something
I think that should be noted.
I’ve taken into account the—I’ve taken into account the fact
that it is my conclusion that this happened through anger and
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recklessness rather than any intention to harm the child. I think
the testimony was fairly consistent, with all the Commonwealth’s
witnesses even, that [Appellant] was a loving father. Whether or
not he was able to control [his] temper or anger is a different
question and one that, frankly, we need not answer. The facts of
the case are what they are.
I’ve taken into account the provisions of the sentencing
guidelines.
I’ve taken into account, of course, [Appellant’s] prior record.
Id. at 102.
The trial court indicated in its opinion that, after being fully aware of the
pre-sentence investigation report, the impact of the assault upon Victim’s life,
the circumstances surrounding the offense, the applicable sentencing
guidelines, and Appellant’s past violent criminal history, it concluded that an
aggravated range sentence was appropriate for Appellant’s aggravated assault
of Victim. See Trial Court Opinion, filed 8/2/17, at 6. We find no abuse of
discretion and conclude Appellant’s issues are meritless.
For all of the forgoing reasons, we affirm in all respects, except that we
vacate the “no contact”/supervised contact condition placed on Appellant’s
prison sentence/possible parole for aggravated assault.
Judgment of sentence affirmed, in part, and vacated, in part.
Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/18/2017
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