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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROY WINDOM :
:
Appellant : No. 607 EDA 2020
Appeal from the Judgment of Sentence Entered January 13, 2020
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005594-2017
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PANELLA, P.J.: Filed: May 13, 2021
Roy Windom, appeals from the January 13, 2020, judgment
of sentence entered in the Court of Common Pleas of Philadelphia County. The
sentencing order followed his conviction of multiple charges of sexual abuse
of his younger sister, D.J. Upon review, we affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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On June 7, 2019, a jury convicted the Appellant of Rape of a Child,1
graded as a Felony of the First Degree,2 Unlawful Contact with a Minor,3 also
graded as a Felony of the First Degree,4 Endangering Welfare of Children,5 a
____________________________________________
1 “(c) Rape of a child.--A person commits the offense of rape of a child, a
felony of the first degree, when the person engages in sexual intercourse with
a complainant who is less than 13 years of age.” 18 Pa.C.S.A. § 3121(c).
2 Id.
3 18 Pa.C.S.A. § 6318 provides, in pertinent part:
(a) Offense defined.--A person commits an offense if he is
intentionally in contact with a minor, or a law enforcement
officer acting in the performance of his duties who has
assumed the identity of a minor, for the purpose of
engaging in an activity prohibited under any of the
following, and either the person initiating the contact or
the person being contacted is within this Commonwealth:
(1) Any of the offenses enumerated in Chapter 31
(relating to sexual offenses).
....
4 18 Pa.C.S.A. § 6318(b)(1).
5 “(a) Offense defined.-- (1) 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).
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Misdemeanor of the First Degree,6 and Indecent Assault – Person Less Than
13 Years of Age,7 graded as a Felony of the Third Degree.8
Sentencing was held on January 13, 2020. A timely appeal was filed on
February 11, 2020.9 Appellant argues the trial court erred by abusing its
discretion and imposing an excessive aggregate sentence of 12½ to 25 years’
incarceration. As stated by the Appellant, the issue before us is:
Whether the trial court abused its discretion by not
thoroughly considering petitioner's background, his ability
for rehabilitation, his social history, rehabilitative needs,
and mental health capacity when it imposed an excessively
punitive aggregated sentence of 12 1/2 to 25 years'
incarceration followed by twelve years' reporting probation
on Rape of a Child (F1), Unlawful Contact with a Minor
____________________________________________
6 18 Pa.C.S.A. § 4304(b)(1).
7 Indecent Assault is defined as:
(a) Offense defined.--A person is guilty of indecent
assault if the person has indecent contact with the
complainant, causes the complainant to have indecent
contact with the person or intentionally causes the
complainant to come into contact with seminal fluid, urine
or feces for the purpose of arousing sexual desire in the
person or the complainant and:
...
(7) the complainant is less than 13 years of age;
....
18 Pa.C.S.A. § 3126(a)(7).
8 18 Pa.C.S.A. § 3126(b)(3)(ii).
9An earlier, interlocutory appeal was quashed by this Court on September 24,
2019.
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(Fl), Endangering Welfare of Children (F), and Indecent
Assault Forcible Compulsion (F3)?
Appellant’s Brief at 6. Therefore, this matter concerns a challenge to the
discretionary aspects of the sentence. We conclude, considering our review
pursuant to 42 Pa.C.S.A. § 9781(d), that the issue raised by the Appellant has
no merit.
“It is well-settled that appeals of a discretionary aspect of
a sentence are not reviewable as a matter of right.” Commonwealth v.
Miller, 965 A.2d 276, 277 (Pa. Super. 2009) (citation omitted). To invoke this
Court's jurisdiction, an appellant challenging the discretionary aspects of
his sentence must first satisfy a four-part test. See Commonwealth v.
Griffin, 65 A.3d 932, 935 (Pa. Super. 2013). We consider:
(1) whether appellant has filed a timely notice of appeal;
(2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and
modify sentence; (3) whether appellant's brief has a fatal
defect; and (4) whether there is a substantial question that
the sentence appealed from is not appropriate under
the Sentencing Code.
Commonwealth v. Gonzalez, 109 A.3d 711, 731 (Pa. Super. 2015) (citation
omitted).
Here, Windom's appeal is in compliance with the requirements to
challenge the discretionary aspects of his sentence. Windom filed a timely
appeal, filed a post-sentence motion, and provided a Pa.R.A.P. 2119(f)
statement in his brief. Therefore, we must determine whether Windom has
presented a substantial question.
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The determination of what constitutes a substantial question mut be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825
(Pa. Super. 2007). “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. Prisk, 13 A.3d 526, 533 (Pa. Super.
2011) (internal citations omitted).
While his Pa.R.A.P. 2119(f) statement is sparse, the Appellant contends
that the trial court abused its discretion by imposing a sentence without
considering the required factors under 42 Pa.C.S. § 9721(b). He argues that
the trial court focused on the seriousness of the offenses without regard to
the other factors listed in section 9721(b). We have previously held that such
a claim presents a substantial question for our review. See Commonwealth
v. Riggs, 63 A.3d 780, 786 (Pa. Super. 2012). Therefore, we will address the
substance of Appellant's argument.
Our Legislature has specified the following directives to the trial court in
relation to sentencing:
(b) General standards.--In selecting from the
alternatives set forth in subsection (a), the court shall
follow the general principle that the sentence imposed
should call for total confinement that is consistent with
section 9725 (relating to total confinement) and 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.
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The court shall also consider any guidelines for sentencing
and resentencing adopted by the Pennsylvania
Commission on Sentencing and taking effect under section
2155 (relating to publication of guidelines for sentencing,
resentencing and parole, risk assessment instrument and
recommitment ranges following revocation). In every case
in which the court imposes a sentence for a felony or
misdemeanor, modifies a sentence, resentences a person
following revocation of probation or resentences following
remand, 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. In every case where the court imposes a
sentence or resentence outside the guidelines adopted by
the Pennsylvania Commission on Sentencing under
sections 2154 (relating to adoption of guidelines for
sentencing), 2154.1 (relating to adoption of guidelines for
restrictive conditions), 2154.3 (relating to adoption of
guidelines for fines), 2154.4 (relating to adoption of
guidelines for resentencing) and 2154.5 (relating to
adoption of guidelines for parole) and made effective under
section 2155, the court shall provide a contemporaneous
written statement of the reason or reasons for the
deviation from the guidelines to the commission, as
established under section 2153(a)(14) (relating to powers
and duties). Failure to comply shall be grounds for vacating
the sentence or resentence and resentencing the
defendant.
42 Pa.C.S.A. § 9721(b) (footnote omitted). Furthermore, the Sentencing Code
provides factors for the appellate courts to consider if there is an appeal from
the judgment of sentence:
Appellate review of sentence
(a) Right to appeal.--The defendant or the
Commonwealth may appeal as of right the legality of the
sentence.
(b) Allowance of appeal.--The defendant or the
Commonwealth may file a petition for allowance of appeal
of the discretionary aspects of a sentence for a felony or a
misdemeanor to the appellate court that has initial
jurisdiction for such appeals. Allowance of appeal may be
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granted at the discretion of the appellate court where it
appears that there is a substantial question that the
sentence imposed is not appropriate under this chapter.
(c) Determination on appeal.--The appellate court shall
vacate the sentence and remand the case to the
sentencing court with instructions if it finds:
(1) the sentencing court purported to sentence within
the sentencing guidelines but applied the guidelines
erroneously;
(2) the sentencing court sentenced within the
sentencing guidelines but the case involves
circumstances where the application of the guidelines
would be clearly unreasonable; or
(3) the sentencing court sentenced outside the
sentencing guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the
sentence imposed by the sentencing court.
(d) Review of record.--In reviewing the record the
appellate court shall have regard for:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe
the defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
(e) Right to bail not enlarged.--Nothing in this chapter
shall be construed to enlarge the defendant's right to bail
pending appeal.
(f) Limitation on additional appellate review.--No
appeal of the discretionary aspects of the sentence shall be
permitted beyond the appellate court that has initial
jurisdiction for such appeals.
42 Pa.C.S.A. § 9781.
In his brief, Windom provides the Court with a thorough discussion of
appellate cases addressing the discretionary aspects of sentencing. In
reference to the sentencing in this case, Windom contends that the trial court
did not adequately show deference to his lack of a prior criminal history or any
type of earlier bad behavior, his “excellent work history”, and the fact that he
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overcame significant mental health issues to be gainfully employed. The
Appellant also faults the trial court in failing to consider rehabilitation
alternatives. In summary, he argues that the resulting sentence was not
“individualized” in any meaningful way, and “it is clear that this sentence was
fashioned wholly to punish Appellant without any regard for the appropriate
considerations of 42 Pa.C.S. § 9781.” Appellant’s Brief, at 19.
Here, the jury and the trial court heard the troubling facts of this case.
The youthful victim, D.J., had been abused by Windom over numerous years
when she was 9 years old until she was 13. Windom is D.J.’s older brother.
The sexual assaults took place at two different houses. The record more than
adequately details the heinous nature of Windom’s sexual assaults on his
prepubescent younger sister, and we see no need to further describe them
herein.
At the outset of the sentencing hearing, the trial court noted that
Windom had been convicted of rape of a child, endangering the welfare of a
child, indecent assault, and unlawful contact with a child. See N.T. 1/13/20 at
3-4. At the time of sentencing, Windom was 32 years old. See id. at 4. The
trial court noted that Windom had a prior record score of zero. See id. The
offense gravity score for the rape charge was 14, which resulted in a
sentencing guideline range of 72 months to the statutory limit of incarceration,
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plus or minus 12 months.10 Therefore, the standard range minimum sentence
for the charge of rape of a child was six years up to 20 years’ incarceration.
The sentencing court heard the argument made by Windom’s counsel,
which highlighted much of the information contained in the pre-sentence
investigation report. See id. at 4 - 5. Counsel referred to the mental health
report and brought to the court’s attention Windom’s diagnosis of bipolar
disorder. See id. at 5. Counsel referred to Windom’s work history as “pretty
remarkable.” Id. Counsel recommended to the sentencing court that a
sentence in the guidelines range was appropriate given the Appellant’s mental
health status and his prior substance use, specifically mentioning that
rehabilitation was possible so that Windom could be a productive member of
society after his debt to society was paid. See id. at 6.
Counsel for the Commonwealth referred to the sentencing
memorandum which the Commonwealth had filed on August 1, 2019, and is
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10The crime of Rape of a Child carries with it a maximum sentence of 40 years’
incarceration:
(e) Sentences.--Notwithstanding the provisions of section
1103 (relating to sentence of imprisonment for felony), a
person convicted of an offense under:
(1) Subsection (c) shall be sentenced to a term of
imprisonment which shall be fixed by the court at not more
than 40 years.
18 Pa.C.S.A. § 3121(e)(1).
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in the record. The Commonwealth’s attorney reminded the court that the
multiple assaults in this case took place over several years. See id. at 7.
Considering the appalling attacks on the youthful victim, the Commonwealth
opined that the life of the victim has been permanently changed. In
conclusion, the Commonwealth recommended a sentence of 30 to 60 years’
incarceration, followed by three years of reporting probation. See id. at 8.
The sentencing court gave the Appellant an opportunity to exercise his
right of allocution, which he decided against. The court then referred to all the
reports which had been made a part of the record, and the specific facts of
the Appellant’s life such as his work history, and sentenced the Appellant as
follows:
- On the conviction of rape of a child, to a term of imprisonment of 10
to 20 years;
- On endangering the welfare of children, to a term of imprisonment
of 2½ to 5 years, consecutive to the sentence on rape of a child;
- On unlawful contact with a child, a consecutive 7 years of reporting,
sex offender probation;
- On indecent assault, a consecutive term of 5 years of probation.
As stated earlier, the aggregate sentence was a total of 12½ to 25 years’
incarceration followed by 12 years of reporting probation.
Windom argues that the trial court sentenced him “without sufficient
explanation on the record, and therefore was an abuse of discretion.”
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Appellant's Brief at 13. With respect to the claim that the sentencing court
failed to state its reasons, the record proves differently.
As the court stated on the record, it had considered, among other things,
the relevant pre-sentence investigation report, and according
to Commonwealth v. Fowler, it thereby satisfied the requirement to place
its reasons for sentencing on the record. See 893 A.2d 758,
766 (Pa. Super. 2006). In Fowler, this Court stated, “[s]ince the sentencing
court had and considered a presentence report, this fact alone was adequate
to support the sentence, and due to the court's explicit reliance on that report,
we are required to presume that the court properly weighed the mitigating
factors present in the case.” Id. The Fowler decision follows the Pennsylvania
Supreme Court policy on the use of pre-sentence reports at the time of
sentencing:
Where pre-sentence reports exist, we shall continue to
presume that the sentencing judge was aware of relevant
information regarding the defendant's character and
weighed those considerations along with mitigating
statutory factors. A pre-sentence report constitutes the
record and speaks for itself.
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988).
Lastly, the imposition of consecutive, rather than
concurrent, sentences creates a concern over the discretionary aspects of a
sentence in only the most extreme circumstances, “such as where the
aggregate sentence is unduly harsh, considering the nature of the crimes and
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the length of imprisonment.” Commonwealth v. Moury, 992 A.2d 162, 171-
172 (Pa. Super. 2010) (citation omitted)
The sentence imposed here, an aggregate of 12½ to 25 years’
incarceration followed by 12 years of reporting probation, is not unduly harsh
given the scope of the crimes at issue. Nor does it reflect a failure to consider
the mitigating factors highlighted by Windom, as it is well below the possible
aggregate sentence for his convictions; the maximum sentence for the rape
charge alone was 40 years imprisonment. Under our standard of review, an
abuse of discretion may not be found unless the trial court's decision is “clearly
erroneous.” Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007)
(citation omitted). “An abuse of discretion is more than just an error in
judgment and, on appeal, the trial court will not be found to have abused
its discretion unless the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality, bias or ill-
will.” Commonwealth v. Tirado, 870 A.2d 362, 366 (Pa. Super. 2005)
(citation omitted).
Under our deferential standard of review, we discern no abuse of
discretion in the trial court's sentence, and we decline to disturb it. Therefore,
we find that Windom's appeal merits no relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/21
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