J-S69004-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CORA BARNES :
:
Appellant : No. 1525 EDA 2019
Appeal from the Judgment of Sentence Entered May 2, 2017
In the Court of Common Pleas of Bucks County Criminal Division at
No(s): CP-09-CR-00000276-2017
BEFORE: SHOGAN, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 14, 2020
Appellant, Cora Barnes, appeals nunc pro tunc from the judgment of
sentence entered May 2, 2017, following entry of her guilty plea to one count
each of theft by unlawful taking, theft by deception, receiving stolen property,
forgery, and access device fraud by unauthorized user.1 We affirm.
The trial court summarized the procedural and factual history of this
case as follows:
Factual History
The victims in this matter are Stanley and Virginia Beckett.
Stanley Becket[t] was 91 years old at the time of the proceedings
before this [c]ourt. His wife, Virginia Beckett, was 88 years old.
N.T. 4/19/17, at 13; N.T. 4/24/17 at 14. Mr. Beckett has
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3921(a), 3922(a)(1), 3925(a), 4101(a)(2), and
4106(a)(1)(iv), respectively.
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experienced significant hearing loss. N.T. 4/19/17, at 16, 17, 18;
N.T. 5/2/17, at 2-3. Mrs. Beckett has significant memory issues
and cannot walk without assistance. N.T. 4/19/17, at 18.
[Appellant] was hired to assist Mr. Beckett in caring for his wife.
N.T. 4/19/17, at 13; N.T. 4/24/17, at 14. It was agreed that
[Appellant] would receive a weekly salary of $440. Mr. Beckett
paid [Appellant] by personal check. Because Mr. Beckett has
difficulty writing, it was his practice to sign a check each week and
allow [Appellant] to fill out the remaining information, including
the amount payable. Over a five-month period, from June 1,
2016[,] through November 2, 2016, [Appellant] misappropriated
a total of $14,935.61 from Mr. and Mrs. Beckett. Specifically,
[Appellant] forged Mr. Beckett’s signature on checks and used the
checks he did sign to withdraw funds that far exceeded her
agreed[-]upon salary. [Appellant] also used Mr. and Mrs.
Beckett’s debit card to make unauthorized purchases from T-
Mobile and Amazon. N.T. 4/24/17, at 13-14. When Mr. Beckett
discovered that more than $14,000 was missing from his checking
account, he contacted the police. After conducting her initial
investigation, Officer Michelle Williamson of the Penndel Borough
Police Department interviewed [Appellant]. During that interview,
[Appellant] admitted to the allegations regarding the Beckett[s’]
checking account stating that she committed the theft to pay for
her children’s legal fees and to post their bail. N.T. 4/24/17, at
14. She did not admit to the unauthorized use of the debit card.
She stated that the debit card information was entered into her
computer and that any purchases she had made using that card
she thought she had removed. She stated that her grandchildren,
who also used her computer, were responsible for any
unauthorized purchases. N.T. 4/19/17, at 24.
Procedural History
On November 28, 2016, [Appellant] was charged with theft
and related offenses. On January 11, 2017, the Commonwealth
withdrew four of the nine charges. [Appellant] then waived the
preliminary hearing and agreed to enter a guilty plea to the
remaining charges, specifically Theft by Unlawful Taking, 18
Pa.C.S. § 3921(a), a felony of the third degree; Theft by
Deception, 18 Pa.C.S. § 3922(a)(1), a felony of the third degree;
Receiving Stolen Property, 18 Pa.C.S. § 3925(a), a felony of the
third degree; Forgery (unauthorized act in writing), 18 Pa.C.S. §
4101(a)(2), a felony of the third degree; and Access Device Fraud
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(use unauthorized), 18 Pa.C.S. § 4106(a)(1)(iv), a felony of the
third degree.
On Wednesday, April 19, 2017, this [c]ourt refused to
accept [Appellant’s] proffered guilty plea due to her failure to
acknowledge her guilt of the crimes charged.
* * *
After rejecting the guilty plea, this [c]ourt directed that the
matter proceed to trial and that the necessary arrangements be
made to begin jury selection. N.T. 4/19/17, at 26. When court
reconvened, [Appellant] failed to appear. A recess was taken to
allow counsel to attempt to locate [Appellant]. Following that
recess, counsel for [Appellant] advised the [c]ourt that he was
unable to locate [Appellant] and that she was not responding to
his telephone calls. A bench warrant was therefore issued for her
arrest. Because [Appellant] willfully absented herself from the
proceedings and because the case needed to go forward to
accommodate the Commonwealth’s 91-year-old victim, this Court
ruled that [Appellant] could be tried in abstentia. So as to allow
[Appellant] the opportunity to surrender, trial was set to
commence on Monday, April 24, 2017. Defense counsel was
instructed to advise [Appellant] to surrender herself to the nearest
police department without delay if he had contact with her in the
interim. NT. 4/19/17, at 28-31. [Appellant] did not surrender
herself on the warrant between Wednesday, April 19th, and
Monday, April 24th, but did appear in court on the morning trial
was scheduled to commence.
On that date, [Appellant] entered a guilty plea. During the
course of the guilty plea colloquy, [Appellant] admitted that the
facts summarized above were substantially correct. Specifically,
she admitted that she stole the money by increasing the amounts
payable on her salary checks and that she used Mr. and Mrs.
Beckett’s debit card without their authorization to buy a computer
on Amazon. N.T. 4/24/17, at 15-16.
[Appellant] testified that she stole the $14,935.61 in order
to post bail for her children and to purchase personal items for
herself and that she had no money to pay restitution. N.T.,
4/24/17, at 18-19, 30. As a result of this testimony, the [c]ourt
inquired into that status of the bail money and was advised by
[Appellant] that the money was still posted. After eliciting
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information as to the names of the three children involved, the
cases in which bail was posted and the jurisdictions in which the
bail was posted, this [c]ourt deferred sentence to the following
day in order for [Appellant] and the Commonwealth to arrange to
secure those funds for purposes of restitution.1 N.T. 4/24/17, at
20-22, 27-31. On April 25, 2017, sentencing was continued to
May 2, 2017.
1 [Appellant] testified that the money was posted in various
jurisdictions in New Jersey and that her children were ages
thirty-six, thirty-two and twenty-eight[,] respectively. N.T.
4/24/17, at 20-22, 27-31.
On May 2, 2017, the attorney for the Commonwealth
advised this [c]ourt that, contrary to [Appellant’s] representations
to this [c]ourt that she had personally posted bail for three of her
children, a records check established that [Appellant’s] children
either did not have any criminal charges pending at the time the
thefts in the instant case were committed or had only
miscellaneous matters pending which did not require the posting
of monetary bail. N.T. 5/2/17, at 3-5. In response, [Appellant]
asserted that, contrary to her previous testimony, she did not
personally post bail but rather gave the money to her children
based on their representations that they needed money for bail.
N.T. 5/2/17, at 7-9, 13-14. As of the date of sentencing,
[Appellant] had not returned any of the victims’ money. N.T.
5/2/17, at 10.
[Appellant] was sentenced to three and [one]-half to seven
years on count 1-Theft by Unlawful Taking. [Appellant] was
determined to be an “eligible offender” under the Recidivism Risk
Reduction Incentive (RRRI) Act and therefore received a[n] RRRI
minimum sentence of thirty-five months. 61 Pa.C.S. §§ 4503,
4505. As to count 4-Forgery, [Appellant] was sentence[d] to a
seven-year term of probation to run consecutive to the sentence
imposed on count 1. As a condition of the sentence, [Appellant]
was ordered to pay restitution to Stanley and Virginia Beckett in
the amount of $14,935.61. No sentence was imposed on [c]ount
2-Theft by Deception, [c]ount 3-Receiving Stolen Property, and
[c]ount 5-Access Device Fraud.
On May 8, 2017, [Appellant] filed motion for reconsideration
of sentence. A hearing was scheduled for July 7, 2017. That
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hearing was continued at [Appellant’s] request to allow her to
make restitution payments.
* * *
By order dated September 8, 2017, the Defendant's motion
for reconsideration of sentence was denied. As of that date, no
restitution had been paid.
No appeal was taken from the judgment of sentence.
On June 7, 2018, [Appellant] filed a pro se Motion for
Modification of Sentence. This [c]ourt deemed [Appellant’s]
untimely request for modification of sentence to be a request for
relief pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.
§ 9541 et seq. By order dated June 23, 2018, counsel was
appointed to represent [Appellant] in the PCRA proceedings. On
December 4, 2018, counsel filed an amended PCRA petition. On
January 3, 2019, the Commonwealth filed its response to the
amended PCRA petition. On January 4, 2019, this [c]ourt entered
an agreed order granting [Appellant’s] request for relief and
reinstating [Appellant’s] right to file a motion to reconsider
sentence and her right to file a direct appeal.
On January 14, 2019, [Appellant] filed a Motion for
Reconsideration of Sentence. On April 24, 2019, a hearing was
held on [Appellant’s] motion to modify sentence. On that same
date, [Appellant’s] motion was denied.
On May 23, 2019, [Appellant] filed a timely Notice of Appeal.
By order dated May 23, 2019, [Appellant] was directed to file a
Concise Statement of Matters Complained of on Appeal
(Statement) pursuant to Pa.R.A.P. 1925(b).
Trial Court Opinion, 8/28/19, at 1–2, 4–8. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant raises the following single issue on appeal:
A. Did the trial court abuse its discretion in imposing a
statutory maximum sentence of three[] and one-half (3 1/2) to
seven (7) years, which exceeded the aggravated range of
sentences for a 55-year old appellant who had a zero prior record
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score, had no history of violence and had not committed a violent
offense in the instant crime, where the appellant cooperated with
the police and accepted responsibility for her crimes, and had
made efforts to pay back the victims while incarcerated?
Moreover, did the court abuse its discretion in ignoring the other
mitigation presented at sentencing to impose this clearly
excessive sentence?
Appellant’s Brief at 4.
Appellant’s issue relates to the discretionary aspects of her sentence. It
is well settled that a challenge to the discretionary aspects of a sentence is a
petition for permission to appeal, as the right to pursue such a claim is not
absolute. Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa. Super.
2014). “An appellant must satisfy a four-part test to invoke this Court’s
jurisdiction when challenging the discretionary aspects of a sentence,” by (1)
preserving the issue in the court below, (2) filing a timely notice of appeal,
(3) including a Rule 2119(f) statement, and (4) raising a substantial question
for our review. Commonwealth v. Tejada, 107 A.3d 788, 797 (Pa. Super.
2015) (citation omitted); Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.
Super. 2013).
In the instant case, Appellant filed a timely appeal, the issue was
properly preserved in a post-sentence motion, and Appellant’s brief contains
a concise statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence pursuant to Pa.R.A.P.
2119(f). Accordingly, we must determine whether Appellant has raised a
substantial question that the sentence is not appropriate under 42 Pa.C.S.
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§ 9781(b). Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super.
2010).
The determination of whether there is a substantial question is made on
a case-by-case basis, and this Court will allow the appeal 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. Caldwell, 117 A.3d 763, 768 (Pa. Super.
2015). “Our 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.” Commonwealth v. Knox, 165 A.3d 925,
929 (Pa. Super. 2017) (quoting Commonwealth v. Tirado, 870 A.2d 362,
365 (Pa. Super. 2005)).
In her Rule 2119 statement, Appellant asserts the trial court erred in
imposing a sentence beyond the aggravated range of the Sentencing
Guidelines without specifying the factors that prompted the upward departure.
Appellant’s Brief at 10. This Court has held that claims of a sentencing court
imposing a sentence outside of the standard guidelines without stating
adequate reasons on the record presents a substantial question.
Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014); see
also Commonwealth v. Gooding, 818 A.2d 546, 553 (Pa. Super. 2003)
(substantial question raised where the appellant asserts the sentencing court
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failed to state reasons on the record to justify an upward departure from the
Sentencing Guidelines). Thus, we conclude that Appellant’s claim presents a
substantial question for our review, and we review the merits of Appellant’s
challenge.
Our standard of review follows:
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 order to establish that
the sentencing court abused its discretion, the defendant 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. The rationale behind such broad discretion
and the concomitantly deferential standard of appellate review is
that the sentencing court is in the best position to determine the
proper penalty for a particular offense based upon an evaluation
of the individual circumstances before it. To determine whether
the trial court made the proper considerations during sentencing,
an appellate court must, of necessity, review all of the judge’s
comments.
Commonwealth v. Luketic, 162 A.3d 1149, 1163 (Pa. Super. 2017).
Our careful review of the record reveals that the trial court did not abuse
its discretion in sentencing Appellant. The trial court acknowledged on the
record the applicable provisions of the Sentencing Guidelines and stated the
reasons why it was imposing a sentence beyond the aggravated range of the
Guidelines. N.T. (Sentencing), 5/2/17, at 29–33. We note that sentencing
courts are not bound by the Sentencing Guidelines because they are merely
advisory. Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa. Super. 2008)
(citation omitted). The sentencing court “may depart from the [G]uidelines if
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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.” Id. (internal quotation marks and citation omitted). Further,
while Appellant asserted in her statement of the issue that the trial court
abused its discretion by failing to consider mitigating factors presented at
sentencing, she fails to identify what those factors are.
The trial court considered all necessary and relevant factors relating to
Appellant’s personal circumstances and characteristics. Moreover,
[t]he sentencing court is in a superior position to “review the
defendant’s character, defiance or indifference, and the overall
effect and nature of the crime.” Commonwealth v. Marts, 889
A.2d 608, 613 (Pa. Super. 2005) (citation omitted). “Simply
stated, the sentencing court sentences flesh-and-blood
defendants and the nuances of sentencing decisions are difficult
to gauge from the cold transcript used upon appellate review.
Moreover, the sentencing court enjoys an institutional advantage
to appellate review, bringing to its decisions an expertise,
experience, and judgment that should not be lightly disturbed.”
Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957, 961
(2007).
Commonwealth v. Conte, 198 A.3d 1169, 1177 (Pa. Super. 2018), appeal
denied, 206 A.3d 1029 (Pa. 2019). Upon review of the parties’ briefs, the
certified record, and our standard of review, we conclude that the trial court
properly disposed of Appellant’s issue in its Pa.R.A.P. 1925(a) opinion. The
trial court imposed a sentence outside of the guideline ranges because
Appellant abused the ninety-one-year-old victim’s trust, committed the crimes
over a period of time, lied to the court, failed to begin making restitution until
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after her incarceration, and did not show remorse or accept responsibility for
her actions. N.T. (Sentencing), 5/2/17, at 29–33; Trial Court Opinion,
8/28/19, at 10–12. The trial court was not required to delineate each specific
factor that called for a sentence outside of the guideline range because the
record reveals that the court carefully considered the facts of the crime and
Appellant’s character. See Commonwealth v. Crump, 995 A.2d 1280, 1283
(Pa. Super. 2010) (“A sentencing court need not undertake a lengthy
discourse for its reasons for imposing sentence or specifically reference the
statute in question, but the record as a whole must reflect the sentencing
court’s consideration of the facts of the crime and the character of the
offender.”).
We affirm the judgment of sentence on the basis of the trial court’s
August 28, 2019 Pa.R.A.P. 1925(a) opinion. In the event of future
proceedings, the parties are directed to attach a copy of the trial court’s
opinion to this memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/14/20
- 10 -
-,
Circulated 12/30/2019 0224 PM
IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
CRIMINAL DMSION
COMMONWEALTH OF PENNSYLVANIA : No. CP-09-CR-0000276-2017
[1525 EDA 2019]
v.
CORA BARNES
OPINION
The Defendant, Cora Barnes, has filed an appeal from the judgment of se4fe,P.:9e �ered;'ln
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Factual History l> ....1
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The victims in this matter are Stanley and Virginia Beckett. Stanley Beckett was �
years
old at the time of the proceedings before this Court. His wife, Virginia Beckett, was 88 years old.
N.T. 4/19/17, at 13; N.T. 4/24/17 at 14. Mr. Beckett has experienced significant hearing loss. N.T.
4/19/17, at 16, 17, 18; N.T. 5/2/17, at 2-3. Mrs. Beckett bas significant memory issues and cannot
walk without assistance. N.T. 4/19/17, at 18. The Defendant was hired to assist Mr. Beckett in
caring for his wife. N.T. 4/19/17. at 13; N.T. 4124/17, at 14. It was agreed that the Defendant
would receive a weekly salary of $440. Mr. Beckett paid the Defendant by personal check.
Because Mr. Beckett has difficulty writing, it was bis practice to sign a check each week and allow
the Defendant to fill out the remaining information, including the amount payable. Over a five-
month period, from June 1, 2016 through November 2, 2016, the Defendant misappropriated a
total of$14,935.61 from Mr. and Mrs. Beckett. Specifically, the Defendant forged Mr. Beckett's
signature on checks and used the checks he did sign to withdraw funds that far exceeded her agreed
upon salary. The Defendant also used Mr. and Mrs. Beckett's debit card to make unauthorized
purchases from T-Mobile and Amazon. N.T. 4/24/17, at 13-14. When Mr. Beckett discovered
that more than $14,000 was missing from his checking account, he contacted the police. After
conducting her initial investigation, Officer Michelle Williamson of the Penndel Borough Police
Department interviewed the Defendant. During that interview, the Defendant admitted to the
allegations regarding the Beckett's checking account stating that she committed the theft to pay
for her children's legal fees and to post their bail. N.T. 4124/17, at 14. She did not admit to the
unauthorized use of the debit card. She stated that the debit card information was entered into her
computer and that any purchases she had made using that card she thought she had removed. She
stated that her grandchildren, who also used her computer, were responsible for any unauthorized
purchases. N.T. 4/19/17, at 24.
Procedli)r.d B1story
On November 28, 2016, the Defendant was charged with theft and related offenses. On
January 11, 2017, the Commonwealth withdrew four of the nine charges. The Defendant then
waived the preliminary hearing and agreed to enter a guilty plea to the remaining charges,
specifically Theft by Unlawful Taking, 18 Pa.C.S. §392l{a), a felony of the third degree; Theft by
Deception, 18 Pa.C.S. §3922(a){l}, a felony of the third degree; Receiving Stolen Property, 18
Pa.C.S. §3925(a), a felony of the third degree; Forgery {unauthorized act in writing), 18 Pa.C.S.
§4101 {a)(2), a felony of the third degree; and Access Device Fraud (use unauthorized). 18 Pa.C.S.
§4106(a)(l)(iv), a felony of the third degree.
On Wednesday, April 19, 2017, this Court refused to accept the Defendant's proffered
guilty plea due to her failure to acknowledge her guilt of the crimes charged. During the course
of this proceeding, the Defendant testified as follows:
2
BY [DEFENSE COUNSEL]
Q. Now, you indicated or there was indication that at some
point there was an arrangement -- you understood that you could
write money into the checks based on the agreement with the
Becketts; correct?
A. Yes. With the agreement with both of them, yes.
Q. And you added money for purposes that involved -- your
son was in jail?
A. My son was in jail and my daughter was in jail. But that
didn't have nothing to do with me writing checks for them. That
came out of my own private money.
THE COURT: What were you doing with the money,
then? Why did you take the $14,000? That is a lot of money
over a short period of time.
THE W11NESS: I didn't take $14,000. What I did
with my money, I paid bills and stuff. At the time that -- 3:45
in the morning the police officer called. me and told me my
son was arrested. So what I did was my daughter took me
over there and I bailed him out. Two days later my daughter
went for DUI or whatever they called it. She was caught
driving under the influence. And I had to go -- they took me
back over there for her, and I signed the bail papers.
THE COURT: I am not following you. How many
checks did you alter or how many times did you use the
credit card?
THE WITNESS: I only used the credit card to order
her a wheelchair, which Mr. Beckett gave me for like two,
three minutes, and to order her some memory foam slippers.
And I -- he was standing right there when I ordered it over
the phone, And I gave ·bill.l his card back, I asked him as the
lady asked me on the phone you buy one, you get one free. I
asked him did he want a pair. He said no. I told the lady no.
When the shoes came, there was a -
THE COURT: So you are saying you didn't
unlawfully use their credit card?
[DEFENSE COUNSEL]: Did your children use it?
3
THE WITNESS: No. I didn't use no credit card.
Now, only way, like I -
THE COURT: Let's take this one at a time. Did you
take $14,435.61?
THE WITNESS: Like I explained to Michelle, after
I used it, I hit remove. The only way that -- like I explained
to her, it didn't remove when I hit remove. And my
grandchildren asked me could they use my laptop. And I
said if that happened and if they purchased something, I
would gladly pay it back. That's what I told Michelle. I said
but as far as my knowledge, I hit remove.
[DEFENSE COUNSEL]: Michelle is the officer who
arrested-
THE WITNESS: Yeah.
TilE COURT: What did you steal? You are telling
me you didn't steal anything? You haven't told me you stole
anything yet
THE WITNESS: This is-whatever they said I stole,
I agree to it.
THE COURT: Tell me what you stole.
THE WfINESS: I said if my grandchildren did it, I
would lawfully pay it back.
THE COURT: You are saying your grandchildren
stole the money?
THE WITNESS: I ordered it on my laptop. I hit
remove.
THE COURT: She is not admitting guilt I am not
accepting it.
N.T. 4/19/17, at22-25.
After rejecting the guilty plea, this Court directed that the matter proceed to trial and that
the necessary arrangements be made to begin jury selection. N.T. 4/19/17, at 26. When court
4
reconvened, the Defendant failed to appear. A recess was taken to allow counsel to attempt to
locate the Defendant. Following that recess, counsel for the Defendant advised the Court that he
was unable to locate the Defendant and that she was not responding to his telephone calls. A bench
warrant was therefore issued for her arrest Because the Defendant willfully absented herself from
the proceedings and because the case needed to go forward to accommodate the Commonwealth's
91-year-old victim, this Court ruled that the Defendant could be tried in abstemia. So as to allow
the Defendant the opportunity to surrender, trial was set to commence on Monday, April 24, 2017.
Defense counsel was instructed to advise the Defendant to surrender herself to the nearest police
department without delay if he had contact with her in the interim. NT. 4/19/17, at 28-31. The
Defendant did not surrender herself on the warrant between Wednesday, April 191h, and Monday,
April 24th, but did appear in court on the morning trial was scheduled to commence.
On that date, the Defendant entered a guilty plea. During the course of the guilty plea
colloquy, the Defendant admitted that the facts summarized above were substantially correct.
Specifically, she admitted that she stole the money by increasing the amounts payable on her salary
checks and that she used Mr. and Mrs. Beckett's debit card without their authorization to buy a
computer on Amazon. N.T. 4124/17, at 15-16.
The Defendant testified that she stole the $14,935.61 in order to post bail for her children
and to purchase personal items for herself and that she had no money to pay restitution. N.T.
4124/17, at 18-19, 30. As a result of this testimony, the Court inquired into that status of the hail
money and was advised by the Defendant that the money was still posted. After eliciting
information as to the names of the three children involved, the cases in which bail was posted and
the jurisdictions in which the bail was posted, this Court deferred sentence to the following day in
order for the Defendant and the Commonwealth to arrange to secure those funds for purposes of
s
restitution.' N.T. 4/24/17, at 20-22, 27-31. On April 25, 2017, sentencing was continued to May
2, 2017.
On May 2, 2017, the attorney for the Commonwealth advised this Court that, contrary to
the Defendant's representations to this Court that she had personally posted bail for three of her
children, a records check established that the Defendant's children either did not have any criminal
charges pending at the time the thefts in the instant case were committed or had only miscellaneous
matters pending which did not require the posting of monetary bail. N.T. 5/2/17, at 3-5. In
response, the Defendant asserted that, contrary to her previous testimony, she did not personally
post bail but rather gave the money to her children based on their representations that they needed
money for bail. N.T. 5/2/17, at 7-9, 13-14. As of the date of sentencing, the Defendant had not
returned any of the victims' money. N.T. 512/17, at 10.
The Defendant was sentenced to three and a-half to seven years on count 1 - Theft by
Unlawful Taking. The Defendant was determined to be an "eligible offender" under the
Recidivism Risk Reduction Incentive (RRRI) Act and therefore received a RRRI minimum
sentence of thirty-five months. 61 Pa.C.S. §§4503, 4505. As to count 4 - Forgery, the Defendant
was sentence to a seven-year term of probation to run consecutive to the sentence imposed on
count 1. As a condition of the sentence, the Defendant was ordered to pay restitution to Stanley
and Virginia Beckett in the· amount of $14,93 5.61. No sentence was imposed on Count 2 - Theft
by Deception, Count 3 - Receiving Stolen Property, and Count 5 -Access Device Fraud.
On May 8, 2017, the Defendant filed motion for reconsideration of sentence. A hearing
was scheduled for July 7, 2017. That hearing was continued at the Defendant's request to allow
her to make restitution payments.
1 The Defendant testified that the money was posted in various jurisdictions in New Jersey and that her children
were ages thirty-six, thirty-two and twenty-eight respectively. N. T. 4124/17, at 20-22. 27-31,
6
On August 8, 2017, the Commonwealth filed a Motion for Amended Restitution and Denial
of Defense Motion to Reconsider. With regard to the restitution order, the Commonwealth did not
seek to alter the amount of restitution owed but rather sought to allocate the restitution to be paid
between Mr. Beckett and the Victim Compensation Assistance Program. By Order dated August
14, 2017, the Commonwealth's motion to amend restitution order was granted. The restitution
previously ordered was allocated as follows: .$11,624 to Stanley Beckett and .$3,311 to Victim's
Compensation Program.
By order dated September 8, 2017, the Defendant's motion for reconsideration of sentence
was denied. As of that date, no restitution had been paid.
No appeal was taken from the judgment of sentence.
On June 7, 2018, the Defendant filed a prose Motion for Modification of Sentence. This
Court deemed the Defendant's untimely request for modification of sentence to be a request for
relief pursuantto the Post Conviction ReliefAct (PCRA), 42 Pa. C.S. §9541 et seq. By order dated
June 23, 2018, counsel was appointed to represent the Defendant in the PCRA proceedings. On
December 4, 2018, counsel filed an amended PCRA petition. On January 3, 2019, the
Commonwealth filed its response to the amended PCRA petition. On January 4, 2019, this Court
entered an agreed order granting the Defendant's request for relief and reinstating the Defendant's
right to file a motion to reconsider sentence and her right to file a direct appeal.
On January 14, 2019, the Defendant filed a Motion for Reconsideration of Sentence. On
April 24, 2019, a hearing was held on the Defendant's motion to modify sentence. On that same
date, the Defendant's motion was denied.
7
On May 23, 2019, the Defendant filed a timely Notice of Appeal. By order dated May 23,
2019, the Defendant was directed to file a Concise Statement of Matters Complained of on Appeal
(Statement) pursuant to Pa.RA.P. 1925(b). On June 13, 2019, the Defendant filed her Statement.
Analysis
The sole issue raised on appeal relates to the discretionary aspects of sentence. The
Defendant asserts:
The trial court abused its discretion in imposed a statutory maximum
sentence of three and one-half (3 �) to seven (7) years, which
exceeded the aggravated range of sentences for a 5 5 year old
[Defendant] who had a zero prior record score, had no history of
violence and had not committed a violent offense in the instant
crime, where the [Defendant] cooperated with police accepted
responsibility for her crimes, and had made efforts to pay back the
victims while incarcerated. Moreover, the court abused its
discretion in ignoring the other mitigation presented to impose this
clearly excessive sentence.
Statement, ,r 1.
The standards for evaluating challenges to the discretionary aspects of sentence are well
settled. "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." Conuncmwautb
v. BulloQL 170 A.3d 1109, 1123 (Pa.Super.2017) (quotation marks and citations omitted). A mere
"error in judgment" does not constitute an abuse of discretion. Id. "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." Id.
The Sentencing Code requires that, when imposing a sentence, a court must consider the
protection of the public, the gravity of the offense as it relates to the impact on the victim and the
community, the defendant's rehabilitative needs and the sentencing guidelines. 42 Pa.C.S. §
8
9721(b). A sentencing court must also ''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. 11 liL
Although the sentencing guidelines must be considered, the guidelines "have no binding
effect, create no presumption in sentencing, and do not predominate over other sentencing factors
- they are advisory guideposts that are valuable, may provide an essential starting point, and that
must be respected and considered; they recommend, however, rather than require a particular
sentence." CommoQ,wealth v. Walls. 592 Pa. 557, 926 A.2d 957, 964-965 (2007). Since the
sentencing guidelines are merely advisory, "[ijf'the court finds it appropriate to sentence outside
the guidelines, of course it may do so as long as it places its reasons for the deviation on the
record." Qommonwealth y. Dutter. 617 A.2d 330, 333 (Pa.Super.1992) quoting Commooweallb
v. Comish, 589 A.2d 718, 721 (Pa.Super.1991). Moreover, although the record as a whole must
reflect due consideration of the statutory factors, a sentencing court "is not required to parrot the
words of the Sentencing Code, stating every factor that must be considered under 972l(b)."
Commpnwa}th·v, Bullock. 170 A.3d at 1126 (quotation marks and citation omitted).
Where the sentence imposed exceeds the sentencing guidelines, the sentence must be
affirmed unless an appellate court finds ''the case involves circumstances where the application of
the guidelines would be unreasonable." 42 Pa.C.S. § 9781(c)(3) (emphasis added). Although the
Sentencing Code does not define the term "unreasonable," the Supreme Court bas stated,
a sentence may be unreasonable if the appellate court finds that the
sentence was imposed without express or implicit consideration by
the sentencing court of the general standards applicable to
sentencing found in Section 9721, i.e., the protection of the public;
the gravity of the offense in relation to the impact on the victim and
the community; and the rehabilitative needs of the defendant 42
Pa.C.S. § 972l(b).
9
Cemmonwealth v. Walls, 926 A.2d at 964 (2007). In establishing this standard, the Court stated
that "even though the unreasonableness inquiry lacks precise boundaries, we are confident that
rejection of a sentencing court's imposition of sentence on unreasonableness grounds would occur
infrequently, whether the sentence is above or below the guideline ranges." ML.
The sentencing guidelines applicable in the instant case are as follows:
Theft by Unlawful Taking: standard - RS to 9 months; aggravated
-12 months;
Theft by Deception: standard-RS to 9 months; aggravated-12
months;
Forgery: standard - RS to 1 month; aggravated - 4 months; and
Access Device Fraud: standard- RS to 9 months; aggravated - 12
months.
In imposing sentence, this Court considered the sentencing guidelines and determined that
the facts and circumstances of the criminal offenses, the impact of the crimes on the victims and
the history, character and rehabilitative needs of the Defendant called for a sentence that exceeded
the aggravated range of the sentencing guidelines. In making this determination, this Court relied
on a number of factors first and foremost of which was the fact that the Defendant did not commit
one theft but rather stole from the victims on a weekly basis for a period of five months before the
thefts were finally discovered. In addition to committing numerous thefts, the Defendant
repeatedly committed the separate and distinct crimes of forgery and access device fraud. N.T.
5/2/17, at 30, 33. Another significant factor was the fact that the Defendant was being paid to
provide care, protection and support to Mrs. Beckett at the time that she chose to victimize her and
her husband. In committing these crimes, she violated that position of trust. N.T. 5/2/17, at 31.
This Court also considered the fact that that the Defendant chose to victimize individuals who were
particularly vulnerable due to their age, medical condition and limited financial resources. N.T.
10
5/2/17, at 30, 32. Finally, this Court noted that the Defendant showed no remorse for her conduct.
She made no attempt to reimburse the victims and offered no explanation as to what she did with
the proceeds of her crimes. N.T. 5/2/17, at 33.
Given the repeated and systematic nature of the Defendant's criminal conduct, this Court
found her lack of prior criminal convictions to be of little weight. This Court also found the
Defendant's assertion that she "accepted responsibility" to be disingenuous given the fact that
throughout these proceedings the Defendant persisted in placing the blame on others. She blamed
her grandchildren for her use of the victims' debit card and attempted to use her children to explain
her criminal conduct. Given the nature of her crimes and the impact her crimes had on the victims,
the fact that the crimes are "nonviolent" is of little import. Finally, the fact that she made some
restitution payments after she was incarcerated does not demonstrate any real attempt to
I
acknowledge the hann she has caused or any real desire to make reparations. It only serves to
demonstrate that she will live up to her responsibilities only when forced to do so or when it is
otherwise is in her interest to do so.
In imposing sentence, this Court considered all of the factors set forth in the Sentencing
Code including the protection of the public, the gravity of the offense, the history, character,
condition and rehabilitative needs of the Defendant and the sentencing guidelines. The fact that
this Court did not weigh the factors as the Defendant might have wished is not sufficient to support
a claim for appellate relief. Commonwealth v,. Zirkle. 107 A.3d 127, 133 (Pa.Super.2014) ("[W]e
have held that a claim that a court did not weigh the factors as an appellant wishes does not raise
a substantial question."). This Court decision to deviate from the sentencing guidelines was based
on the evidence presented without partiality, prejudice, bias or ill will and the reasons for the
11
sentence were placed on the record as required. There is therefore no basis to conclude that the
sentence imposed constituted an abuse of discretion or was otherwise "unreasonable,"
Conclusion
For the reasons set forth above, this Court's finds the Defendant's claims to be without
merit.
BY THE COURT:
Date
Dent. Z:. �:»>AurJ
DIANE E. GIBBONS, J.
12