Com. v. Holewski, R.

J-A02022-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD A. HOLEWSKI, JR. :
:
Appellant : No. 788 WDA 2019

Appeal from the Judgment of Sentence Entered February 12, 2019
In the Court of Common Pleas of Beaver County Criminal Division at
No(s): CP-04-CR-0000876-2018

BEFORE: SHOGAN, J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.: FILED MAY 08, 2020

Appellant, Richard A. Holewski, Jr., appeals from the judgment of

sentence entered on February 12, 2019, as made final by the denial of

post-trial motions on May 3, 2019, following his bench trial convictions for

three counts of rape by forcible compulsion, three counts of sexual assault,

and one count each of statutory sexual assault, aggravated indecent assault

of a child, corruption of minors, and indecent assault.1 Upon careful review,

we affirm.

We briefly summarize the facts and procedural history relevant to this

appeal as follows. On January 17, 2018, the Commonwealth filed a criminal

complaint against Appellant, alleging that he engaged in escalating acts of

sexual misconduct with his biological niece over the course of 14 years. The
____________________________________________

1 18 Pa.C.S.A. §§ 3121(a)(1), 3124.1, 3122.1, 3125(b), 6301(a), and
3126(a)(1), respectively.
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victim alleged that Appellant began this course of conduct by inappropriately

touching her over her clothing when she was seven years old and sexually

assaulting her, touching her breasts, and digitally penetrating her vagina,

when she was 10 years old. The victim further alleged that Appellant raped

her on three separate, specific occasions when she was 13, 20, and 21 years

of age. Following a bench trial, on November 13, 2018, the trial court found

Appellant guilty of all of the aforementioned crimes.

Important to this appeal, the Beaver County Adult Probation and Parole

Department prepared a pre-sentence investigation (PSI) report prior to

sentencing, which stated in pertinent part:

EMPLOYMENT:

* * *

[Appellant] was at Day Automotive from July 2016 through
November 2016 at the Chevy Store in Monroeville as a manager.
He earned about $1,000[.00] per week plus bonuses.

[Appellant] was at Day Automotive from November 2016 through
November 2018 at the Subaru Store in Pittsburgh. He earned
about $1,000[.00] per week plus bonuses.

[Appellant] worked for Ron Lewis from May 2011 to July 2016
earning about $104,00[.00] per year.

* * *

FINANCIAL SITUATION:

Assets: [Appellant] transferred his home and car into his
wife’s name when he received these charges. He currently does
not own anything.

Liabilities: [Appellant] stated his credit cards and student loans
have gone into default. He said he concentrated on p[lacing]

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everything in his wife’s name to keep her credit intact when he
knew of his incarceration. He does not have any savings.

PSI Report, at *4-5 (unpaginated).2

On February 12, 2019, the trial court sentenced Appellant to an

aggregate term of 16½ to 45 years of imprisonment.3 Moreover, relevant to

this appeal, the trial court also imposed a total of $2,400.00 in fines as an

____________________________________________

2 There are no page numbers or a preparation date on the PSI report. It was
prepared in anticipation of the sentencing hearing scheduled for February 12,
2019. On February 11, 2019, the Beaver County Adult Probation amended
the PSI report regarding matters not relevant instantly. At sentencing,
Appellant did not object to the PSI report’s recitation of his employment
history, income, or statements regarding his transfer of assets and financial
default. He did not object to the admission of the PSI report into the
sentencing record. N.T., 2/12/2019, at 23. At a subsequent hearing on
Appellant’s post-sentence motions, the trial court asked the parties to review
the PSI report, together with the supporting documentation, as presented at
the time of sentencing to ensure accuracy. N.T., 4/25/2019, at 6-9. Once the
parties were certain that all of the documents relied upon by the trial court at
sentencing were in order, the trial court sealed them for our review. Id. at 9.
The Commonwealth attached the aforementioned documents to its appellate
brief and Appellant has not objected to their authenticity. Accordingly, we
have relied upon the Commonwealth’s submissions in issuing our decision.

3 We note that, pursuant to 42 Pa.C.S.A. § 9718(a)(3), the trial court imposed
a mandatory minimum sentence for Appellant’s conviction for aggravated
indecent assault of a child. In an opinion announcing the judgment of the
court, our Supreme Court in Commonwealth v. Resto, 179 A.3d 18, 19 (Pa.
2018) (OAJC) concluded that 42 Pa.C.S.A. § 9718(a)(3) is constitutional. The
Resto Court explained that once a jury convicts a defendant of an offense
enumerated in Section 9718(a)(3), “no proof of any predicate or aggravating
facts” is required. Resto, 179 A.3d at 20. Aggravated indecent assault of a
child is one of the crimes specifically enumerated in Section 9718(a)(3).
Accordingly, in this case, the sentencing court had authority to impose a
mandatory minimum sentence under Section 9718(a)(3) without an additional
jury determination.

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additional sentence. The Sentencing Code, pursuant to 42 Pa.C.S.A. § 9726

provides, in pertinent part:

* * *

(b) Fine as additional sentence.--The court may sentence the
defendant to pay a fine in addition to another sentence, either
involving total or partial confinement or probation, when:

* * *

(2) the court is of the opinion that a fine is specially adapted
to deterrence of the crime involved or to the correction of
the defendant.

(c) Exception.--The court shall not sentence a defendant to pay
a fine unless it appears of record that:

(1) the defendant is or will be able to pay the fine; and

(2) the fine will not prevent the defendant from making
restitution or reparation to the victim of the crime.

(d) Financial resources.--In determining the amount and
method of payment of a fine, the court shall take into account the
financial resources of the defendant and the nature of the burden
that its payment will impose.

42 Pa.C.S.A. § 9726(b)-(d).

On February 22, 2019, Appellant filed a post-sentence motion. The trial

court entered an order scheduling oral argument and granting Appellant

additional time to file a supplemental post-sentence motion. On March 27,

2019, Appellant filed a supplemental post-sentence motion challenging, inter

alia, the imposition of fines pursuant to Section 9726. The trial court heard

oral argument on Appellant’s supplemental post-sentence motion on April 25,

2019. On May 3, 2019, the trial court amended its sentencing order to allow

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for potential prison visits between Appellant and his grandchildren, but denied

relief in all other respects. This timely appeal resulted.4

In its Rule 1925(a) opinion, the trial court explained its rationale for

imposing fines pursuant to Section 9726, as follows:

To summarize, the evidence available to the [trial] court, including
the [PSI] report which was admitted as evidence without
objection, [] was expressly considered by the [trial] court, and []
indicated [Appellant’s] successful employment history and
available assets up to the point when he was criminally charged.
The [trial] court expressly noted [Appellant’s] employment history
at the time of sentencing, as well as the [] gravity of the offenses
committed by [Appellant]. The [trial] court further noted
[Appellant’s] exploitation of his familial relationship to the victim
as a means of facilitating her sexual abuse and repeated
victimization.

The [trial] court [opines it] applied the sentencing guidelines,
which expressly provide that a fine may be imposed in addition to
any guideline sentence. [Appellant] touched [the victim’s]
intimate parts as a seven-year-old girl. He used his hands to
penetrate her vagina when she was only ten years old. He forcibly
raped her for the first time when she was only thirteen years old,
and continued to forcibly rape her over the years and even into
her early adulthood. The harm caused by the sexual abuse she
suffered is ongoing and resulted in her need for therapy. Based
upon these facts and circumstances, the [trial] court imposed [an]
aggregate fine of $2,400[.00].

[The trial court further found that] while [Appellant] may have
transferred all of his assets to his family, the circumstances
surrounding the transfer [were] suspect, and [Appellant’s]
preemptive transfer of assets should therefore not be permitted
____________________________________________

4Appellant filed a notice of appeal on May 28, 2019. The trial court directed
Appellant to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b) on May 29, 2019. Appellant complied timely.
The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on July 15,
2019.

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to frustrate the imposition of [a] fine. Although [Appellant’s]
future earnings cannot be certain due to his present incarceration
and the collateral consequence of his criminal record, [the trial
court concluded] he does have future earning potential, as
evidenced by his past employment and earnings.

* * *

In short, the [trial court determined the] record in this case was
more than adequate to support the imposition of fines. [It claims]
the fines imposed were appropriate, given the gravity of the
offenses and considering [Appellant’s] individual circumstances.
The [trial] court stated on the record its findings and reasons for
the sentence it imposed, expressly commenting on [Appellant’s]
previous successful employment. Because [it believed] the record
contained an adequate basis for the imposition of fines, [the trial
court opined] the fines imposed [] were not illegal. Because the
[trial] court explained its findings and reasons for the sentence it
imposed on the record at the time of sentencing, and those
reasons adequately explain why fines were imposed in this case
are justified, the [trial] court [also states it] did not abuse its
discretion.

Trial Court Opinion, 7/15/2019, at 45-47 (record citations, superfluous

capitalization, and original footnotes omitted).

Additionally, the trial court rejected Appellant’s argument that, because

he is incarcerated and has no assets, he does not have the ability to pay the

fines. More specifically, the trial court opined that “if [it were] to apply

[Appellant’s] argument, then virtually no defendant who is incarcerated could

be sentenced to pay a fine, even where that defendant was successfully

employed in a high-paying career and was in the possession of valuable assets

immediately prior to incarceration.” Id. at 43. The trial court further noted

that, without notice and a hearing to determine his ability to pay, funds cannot

be deducted from Appellant’s inmate account to pay toward fines while he is

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incarcerated. Id. at 46. Likewise, Appellant cannot be punished subsequently

for failing to pay the fines without notice and a hearing. Id. For all of these

reasons, the trial court determined that the fines imposed were proper and

that Appellant was not entitled to relief.

On appeal, Appellant presents the following issue5 for our review:

Did the sentencing court err when it ordered [Appellant] to pay a
fine when statutory requirements were not satisfied?

Appellant’s Brief at 9.

Appellant contends that “[b]ecause the requirements of Section 9726(b)

were not satisfied, the fines are illegal and must be vacated.” Id. at 17. More

specifically, Appellant argues that “the record [] does not support a

conclusion” that the trial court was of the opinion that the fines were specially

adapted to the deterrence of crime involved or the correction of Appellant as

required by 42 Pa.C.S.A. § 9726(b)(2).6 Id. at 21. Appellant’s main
____________________________________________

5 Appellant raised additional issues in his Rule 1925(b) statement pertaining
to: (1) the weight and sufficiency of the evidence supporting his conviction for
aggravated indecent assault of a child; (2) an unrelated claim that the
sentencing court made an unsubstantiated inference to his drug use and
purportedly disregarded character evidence; and (3) the sentencing court
failed to explain its reasons for imposing standard range sentences of
incarceration. The trial court addressed those issues in its Rule 1925(a)
opinion. Appellant, however, abandons those additional claims on appeal and
we find them waived. Commonwealth v. Heggins, 809 A.2d 908, 912 n.2
(Pa. Super. 2002) (“[A]n issue identified on appeal but not developed in the
appellant's brief is abandoned and, therefore, waived.”)

6 Appellant concedes that he is not challenging the trial court’s assessment
regarding his ability to pay fines pursuant to 42 Pa.C.S.A. § 9726(c). See

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contention is that the trial court failed to state its reasons for the imposition

of fines at the time of sentencing.7 In sum, he argues:

At sentencing, the [trial c]ourt made no comment that even
remotely touched upon a special deterrence rationale or
something specific related to this individual defendant and a
monetary punishment. Immediately before announcing the
particulars of each sentence, the [trial c]ourt concluded that
“confinement was necessary.” If there was a place to articulate
something unique about this defendant vis-à-vis a fine, it, most
likely, would have been stated there. Nothing was said. If not
there, then after the announcement of each sentence would have
been the place to address the fine and its uniqueness to this
defendant and this case. Again, nothing was said. The sentencing
transcript runs 49 pages. The only reference to the word “fine”
was during the pronouncement of each punishment.

Id. at 22 (citations to reproduced record and footnote omitted). Finally,

Appellant suggests that the trial court’s subsequent opinion focused almost

exclusively on, and relied upon legal authority interpreting, his ability to pay

the fines. Id. at 23-24. Appellant concludes that the trial court’s imposition

of fines constituted an illegal sentence. Id. at 18.

Initially, before addressing the merits of Appellant’s claim, we note the

following. The sentencing court determined that Appellant raised a narrow

legality of sentence claim based upon our decision in Commonwealth v.

____________________________________________

Appellant’s Brief at 18 n.1. Moreover, Appellant does not challenge the trial
court’s analysis pertaining to his ability to pay as the result of his
incarceration.

7As will be discussed at length below, Appellant’s characterization of his claim
appears to blend legality and discretionary sentencing challenges.

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Boyd, 73 A.3d 1269 (Pa. Super. 2013) (en banc). Therein, an en banc panel

of this Court considered, inter alia, whether Boyd’s challenge to the imposition

of fines under Section 9726 implicated the legality of his sentence or the trial

court’s discretionary authority.8 “Boyd argue[d] that the sentencing court

lacked the authority to impose a fine without first determining, from evidence

of record, that he had the ability to pay the fine.” Boyd, 73 A.3d at 1271.

Ultimately, the Boyd Court:

note[d] the explicit language of the mandate contained in section
9726: “The court shall not sentence a defendant to pay a fine
unless it appears of record that ...” the defendant has the financial
means to pay the fine and that the fine will not interfere with
payment of restitution to a victim. 42 Pa.C.S.A. § 9726(c)(1).
Based upon this language, a claim that the trial court failed to
consider the defendant's ability to pay a fine can fall into several
distinct categories. First, a defendant may claim that there was
no record of the defendant's ability to pay before the sentencing
court. In the alternative, a defendant may claim that the
sentencing court did not consider evidence of record. Finally, a
defendant may claim that the sentencing court failed to permit the
defendant to supplement the record.

After reviewing these categories, we conclude[d] that only the first
type of claim qualifies as [a] non-waivable [legality of sentence
claim] under [prior precedent from our Supreme Court]. Section
9726(c) requires that [evidence] be “of record” that the defendant
can pay the fine. Therefore, an argument that there was no
evidence of the defendant's ability to pay constitutes a claim that
the fine was imposed in direct contravention of a statute.
Furthermore, a complete lack of evidence in the record would be
apparent from the face of the record and would not require the
application of reasoning or discretion on the part of the appellate
court. Accordingly, we conclude[d] [] that a claim raising the
____________________________________________

8 Boyd failed to file a post-sentence motion or object to the fine at sentencing
and, therefore, did not preserve issues challenging the trial court’s sentencing
discretion.

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complete absence of evidence of the defendant's ability to pay is
not subject to waiver [because it implicates legality of sentence].

In contrast, [] other [] claims concerning the sentencing court's
consideration of the defendant's ability to pay [] would require the
application of discretionary reasoning to the record before the
sentencing court. Section 9726(c) does not require the
sentencing court to credit any specific testimony. Nor does it
require that the sentencing court hold a hearing on the issue. So
long as there is some evidence of record regarding the defendant's
ability to pay, arguments over the scope and weighting of such
evidence implicate the discretionary aspects of the sentence
imposed.

Id. at 1273–1274.

Similarly, here, Appellant contends that there was no record evidence

that the fines imposed were specially adapted to his deterrence or correction

under 42 Pa.C.S.A. § 9726(b)(2), which in turn permitted the sentencing court

to then determine his ability to pay under subsection(c). Appellant’s Brief at

16 and 21-24. Although Boyd dealt specifically with ability to pay under

subsection(c) of Section 9726, application of our Court’s rationale in Boyd to

subsection(b) is equally applicable herein. The absence of any evidence to

support a fine under Section 9726(b) constitutes a claim that the fine was

imposed without authorization and in direct contravention of a statute. Thus,

we conclude that to the extent Appellant argues that there was no evidence

to support the imposition of fines, he presents a challenge to the legality of

the fines imposed. See Commonwealth v. Nava, 966 A.2d 630, 632 (Pa.

Super. 2009) (“If no statutory authority for the sentence exists, the sentence

is illegal[.]”).

We further note, however, that our decision in Boyd also recounted:

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there was an evidentiary basis for the trial court's imposition of
[Boyd’s] fines. The sentencing court had the benefit of a
pre-sentence investigation (“PSI”) report dated April 14, 2010.
This PSI report contain[ed] significant information regarding
Boyd's educational history, employment history, and existing
assets. This information provided the sentencing court with an
evidentiary basis upon which to impose a fine. Accordingly, we
conclude[d] that Boyd's claim that the sentencing court violated
section 9726(c)(1) [was] based upon a misrepresentation of the
record, and no relief [was] warranted.

Boyd, 73 A.3d at 1274.

In the case sub judice, there is no dispute that the sentencing court had

the benefit of the aforementioned PSI report when imposing fines. On appeal,

Appellant fails entirely to acknowledge the existence of the PSI report in the

record and the sentencing court’s reliance upon the report in fashioning its

sentence. N.T., 2/12/2019, at 37 (trial court “considered the pre-sentence

report and its attached evaluations[.]”). Appellant does not suggest that the

sentencing court misconstrued the information contained in the PSI report.

Moreover, Appellant conceded that the facts contained in the PSI report were

undisputed. See N.T., 4/25/2019 at 15. Upon our review, the PSI report

contains unquestionable evidence that, despite having steady employment

and earning approximately $1,000.00 per week, Appellant admittedly diverted

his assets and intentionally defaulted on his credit obligations in anticipation

of his impeding incarceration. The trial court determined that Appellant’s

actions could not be used as the basis to frustrate its ability to determine his

ability to pay fines and, thus, the fines were necessary for Appellant’s

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correction.9 Hence, similar to our decision in Boyd, we conclude that the

sentencing court in this matter had an evidentiary basis upon which to impose

Appellant’s fines and Appellant’s legality of sentence claim rings hollow.10

Judgment of sentence affirmed.

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9 Moreover, the trial court referenced the gravity of the offenses, the ongoing
harm to the victim and the victim’s need for therapy, and Appellant’s
exploitations of his familial relationship with the victim in explaining the
corrective nature of the fines.

10 Finally, we note that the portion of Appellant’s claim wherein he contends
that the trial court failed to state its reasons for the imposition of fines on the
record at the time of sentencing implicates the trial court’s discretion. See
e.g., Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa Super. 2009)
(claim that the trial court failed to state adequate reasons for the imposition
of Ventura’s sentence on the record implicates discretionary aspects of
sentencing). “Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right.” Commonwealth v. Moury, 992
A.2d 162, 170 (Pa. Super. 2010). “Objections to the discretionary aspects of
a sentence are generally waived if they are not raised at the sentencing
hearing or in a motion to modify the sentence imposed.” Id., citing
Pa.R.Crim.P. 720. Moreover, to implicate our discretionary review, “[a]n
appellant who challenges the discretionary aspects of a sentence in a criminal
matter shall set forth in a separate section of the [appellate] brief a concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f). An appellant
must also raise a “substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).” Moury,
992 A.2d at 170 (citation omitted). Appellant did not raise a discretionary
challenge to his sentence at sentencing, in his original or supplemental
post-sentence motions, or in his appellate brief. In fact, Appellant stresses in
his brief that his objection to the fines imposed in this case constitutes a claim
challenging the legality of his sentence. See Appellant’s Brief at 18. Thus,
Appellant has not preserved, and we shall not address, any claim purporting
to challenge the discretionary aspects of Appellant’s sentence.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/08/2020

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