J-S22036-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHIRLEY JEAN MOORE :
:
Appellant : No. 383 EDA 2022
Appeal from the Judgment of Sentence Entered December 13, 2021
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0005369-2020
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED DECEMBER 28, 2022
Shirley Moore (“Moore”) appeals from the judgment of sentence
imposed following her convictions for, inter alia, theft by unlawful taking –
movable property.1 We affirm.
The trial court summarized the factual and procedural history of this
case as follows:
[In] October [] 2020, police spoke with Sharon Hertz
(hereinafter “Mrs. Hertz”), who was reporting a theft at her
parents’ home[,] located at 135 Lilac Lane in Chalfont Borough in
Bucks County. Mrs. Hertz had hired a healthcare worker from
Believe Home Health Care to come to her father’s aide at his home
at that location. Mrs. Hertz’s father is Joseph Gebhardt[, who] is
in hospice care in his room. He[ is] currently bedridden and
utilizing the living room as his living area.
Mrs. Hertz has a video surveillance system in her father’s
home[,] and she observed [on video] the health care worker,
identified as [Moore], remove money from her father’s wallet and
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1 See 18 Pa.C.S.A. § 3921(a).
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place it in her pocket . . .. Police responded to the home and
spoke with [Moore] [and] her supervisor, who had also been called
to the scene by Mrs. Hertz.
Officer [Bryan] Pullar of Central Bucks Regional [Police
Department] confronted [Moore] about the [theft]. She admitted
she[ had committed] the theft[,] and she surrendered eight $ 1
bills she had taken from the wallet owned by [Gebhardt].
Mrs. Hertz called police again after the initial call and told
officers that she had, then, gone back into the surveillance
system[,] and she observed [Moore] stealing her father’s
handgun. [Moore] was also seen on videotape taking multiple
items throughout the house on the same date, . . . includ[ing]
jewelry, [a] jewelry box, wallets, binoculars, food and personal
items such as talcum powder and cream.
Police asked Mrs. Hertz to formulate the cost of the items
that she had determined was stolen. The amount was
approximately $3,065. Later . . ., police went to the home of
[Moore]. Police explained they were there to speak with her about
the handgun she had taken . . .. [Moore] immediately started
crying[ and] told police that she was sorry that she had taken the
gun. Police asked her where the gun was[,] and she said she
threw it in a lake[,] and then admitted that the gun was at
someone else’s property[,] and she would go get it for police.
Police asked her about other items she had stolen,
specifically, the jewelry box and the items inside of it. [Moore]
had told the police that she threw the jewelry box away and kept
the jewelry. [Moore] came outside of her house and handed to
police a bag of items and told police that she had taken those from
the residence as well.
Police also asked [Moore] about the binoculars that were
alleged to have been stolen. [Moore] handed those to police as
well. Later, [Moore] told police that she would surrender the gun
to police[,] but she did[ not] want to get anyone else in trouble.
She then went to the Old Whiskey Tango Bar located in
Philadelphia. Above that bar are apartments and a common
bathroom.
In the hallway on the second floor was a backpack. [Moore]
turned the backpack over to Detective Kolb, [and told him] the
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gun was in the backpack. Located inside was a Colt .357 handgun
belonging to [Gebhardt]. [Moore later] voluntarily came to
Central Bucks Regional Police Department, turned over more
items stolen from [Gebhardt], including more jewelry and small
items. [Moore] admitted to st[e]aling those items and apologized
at length for her actions.
[Moore, pro se, pleaded guilty on August 26, 2021 to,
among other things, theft by unlawful taking – movable property,
as noted above.] Th[e trial c]ourt deferred sentencing for 90 days
and appointed the Bucks County Public Defender’s Office to
represent [Moore]. On December 13, 2021, th[e c]ourt[, after
reviewing a presentence investigation report (“PSI”) and hearing
a recitation of the factual basis by the Commonwealth, testimony
by Mrs. Hertz, and testimony by Moore followed by additional
allocution, imposed a standard-range sentence of] no less than 21
months to no more than 48 months in a [s]tate [c]orrectional
[f]acility and to a concurrent term of 60 months state probation
[for the theft conviction]. . . . On December 20, 2021, [Moore]
filed a motion for reconsideration of sentence, which th[e c]ourt
denied on January 4, 2022. On January 28, 2022, [Moore timely]
filed Notice of Appeal to the Superior Court.
Trial Court Opinion, 3/22/22, at 1-3 (internal citations, indentation, and
unnecessary capitalization omitted). Both Moore and the trial court complied
with Pa.R.A.P. 1925.
Moore raises the following issue for our review: “Whether the trial court
abused its discretion by imposing a sentence in the standard range because it
failed to consider mitigating factors, considered improper factors, and
exceeded what is necess[a]ry to rehabilitate [Moore] and protect the
public[?]” Moore’s Brief at 4.
A challenge to the discretionary aspects of a sentence does not entitle
an appellant to review as of right. See Commonwealth v. Moury, 992 A.2d
162, 170 (Pa. Super. 2010). Rather, such a challenge must be considered a
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petition for permission to appeal. See Commonwealth v. Christman, 225
A.3d 1104, 1107 (Pa. Super. 2019). Before reaching the merits of a
discretionary sentencing issue,
[w]e conduct a four-part analysis to determine: (1) whether [the]
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 [the] appellant’s brief has a fatal
defect, [see] 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, [see] 42 Pa.C.S.A. §
9781(b).
Moury, 992 A.2d at 170 (internal citation and brackets omitted).
Here, Moore timely appealed her judgment of sentence and included a
Rule 2119(f) statement in her brief. Moore also filed a timely post-sentence
motion alleging the trial court imposed an excessive sentence, considered
improper information at sentencing, and failed to consider her mitigating
factors. See Motion for Reconsideration of Sentence, 12/20/21, at ¶¶ 5-9.
Having determined that Moore preserved her issue for our review, we must
next review her Rule 2119(f) statement to determine whether she has raised
a substantial question that the sentence appealed from is not appropriate
under the Sentencing Code.
In her Rule 2119(f) statement, Moore argues the trial court abused its
discretion by imposing an excessive sentence that exceeds “what is necessary
to protect the public and rehabilitate” Moore, failing to consider Moore’s
mitigating circumstances, and relying on “improper factors” in sentencing her.
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Moore’s Brief at 12.2 An assertion that a sentence was excessive and that the
trial court failed to consider mitigating factors may present a substantial
question. See Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super.
2015); see also Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super.
2014) (stating that “an excessive sentence claim—in conjunction with an
assertion that the court failed to consider mitigating factors—raises a
substantial question”) (internal citation omitted). An allegation that the trial
court considered improper factors likewise raises a substantial question. See,
e.g., Commonwealth v. King, 182 A.3d 449, 454 (Pa. Super. 2018). We
therefore grant Moore permission to appeal the discretionary aspects of her
sentence and proceed to review the issue on its merits.
In reviewing Moore’s discretionary sentencing claim, we are mindful of
the following principles:
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.
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2 Moore also maintains in her Rule 2119(f) statement that the trial court failed
to state on the record its reasons for the sentence. See Moore’s Brief at 12.
However, Moore does not pursue this allegation in the argument section of
her brief, and as noted below, the record contradicts it. See, e.g.,
Commonwealth. v. Snyder, 870 A.2d 336, 342 (Pa. Super. 2005) (stating,
“Undeveloped claims are waived”) (internal citation omitted).
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Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780 (Pa. Super. 2009)
(internal citation omitted). Further, “where the sentencing court imposed a
standard-range sentence with the benefit of a [PSI], we will not consider the
sentence excessive.” Commonwealth v. Corley, 31 A.3d 293, 298 (Pa.
Super. 2011); see also Moury, 992 A.2d at 171 (stating that “where a
sentence is within the standard range of the guidelines, Pennsylvania law
views the sentence as appropriate under the Sentencing Code”). Under such
circumstances, “we can assume the sentencing court was aware of relevant
information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Corley, 31 A.3d at
298 (internal citation omitted). Further, we may not re-weigh the sentencing
factors simply because the trial court did not weigh the mitigating factors as
a defendant would have liked. See Commonwealth v. Macias, 968 A.2d
773, 778 (Pa. Super. 2009). Finally, a sentencing court “must take a
measured approach to community and indirect victim effects depending
upon the level of attenuation between the crime and the proffered impact.”
Commonwealth v. Ali, 149 A.3d 29, 39 (Pa. 2016) (emphasis added);
accord 42 Pa.C.S.A. § 9721(b) (providing that the trial court is to consider at
sentencing, inter alia, “the impact on the life of the victim and on the
community . . ..”).
Moore contends the trial court abused its discretion by failing to consider
and give “proper weight” to her mitigating evidence, including her “age,
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limited criminal history, or work experience,” as well as her “remorse or her
cooperation after her arrest.” Moore’s Brief at 13. Moore also argues the trial
court should not have considered Mrs. Hertz’s testimony at the sentencing
hearing because the testimony “focused almost entirely on how she was
personally impacted by this incident.” Id. at 14. Moore maintains that her
sentence is unreasonable “[b]ased on the testimony presented at [the]
sentencing [hearing] . . ..” Id. at 14.
The trial court considered Moore’s argument and concluded it was
meritless. As the court explained:
[Gebhardt], a Korean War veteran, hired [Moore] to be his
caregiver — she was trusted by [Gebhardt] and his family to help
him in his final days. Yet, [Moore] took advantage of [him] when
he was most vulnerable and stole not only valuable items, but also
sentimental items such as [his] late-wife’s jewelry. While th[e
c]ourt did consider [Moore’s] cooperation after being confronted
by police, it noted that [she] only cooperated after she was
caught[,] and she repeatedly attempted to minimize the situation.
For example, [Moore] did not immediately turn over all of the
stolen items, she waited for police to specifically ask for each one
before admitting it was in her possession. [Moore] claimed that
she stole the items because she fell on hard times. Yet, she did
not sell the items for profit — [she] was even seen wearing one of
the stolen necklaces for show. Further, [Moore] lied to police.
[Moore] stated she threw the stolen gun into a lake and disposed
of the stolen jewelry box, when, in reality, she possessed both
items. To put it plainly, th[e c]ourt found that [Moore] was not
sorry for her actions, she was sorry she got caught.
Accordingly, th[e c]ourt imposed a sentence within the
standard range of the Sentencing Guidelines . . .. Th[e c]ourt
found this sentence necessary to protect the public from predators
like [Moore], who will violate the trust of the community’s most
vulnerable. Further, this sentence was needed to rehabilitate
[Moore], who used a paid position of power to steal[,] and then
only showed remorse when left with no other choice.
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Trial Court Opinion, 3/22/22, at 5-6 (internal citations to the record omitted);
accord N.T., 12/13/21, at 21-24 (trial court stating on the record its reasons
for the sentence).
Following our review, we discern no abuse of discretion by the trial court.
We observe that Moore was sentenced for only one of the charges to which
she pleaded guilty, and the period of incarceration is within the standard range
of the guidelines. See N.T., 8/26/21, at 9 (trial court informing Moore at her
plea hearing that her standard-range sentence began at fifteen to twenty-one
months); N.T., 12/13/21, at 24 (trial court imposing twenty-one to forty-eight
months of incarceration plus concurrent probation). In fashioning this
sentence, the trial court noted it considered, among other things, Moore’s PSI.
See N.T., 12/13/21, at 24. The court is thus presumed to have considered
Moore’s mitigating information. See Corley, 31 A.3d at 298. Moreover, a
standard-range sentence, in addition to a PSI, militates against Moore’s
sentence being excessive. See id; see also Commonwealth v. Hill, 210
A.3d 1104, 1117 (Pa. Super. 2019) (stating that “where a sentence is within
the standard range of the guidelines, Pennsylvania law views the sentence as
appropriate under the Sentencing Code”) (internal citation omitted).
Furthermore, the trial court was permitted to consider Mrs. Hertz’s testimony
at sentencing. See Ali, 149 A.3d at 39 (holding that a trial court may consider
at sentencing the defendant’s impact on the victim, the community, and
indirect victims); see also 42 Pa.C.S.A. § 9721(b). We lastly note that the
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trial court indicated it did consider Moore’s mitigating evidence, but concluded,
based on the attendant circumstances, that her cooperation did not reflect
genuine remorse, and, moreover, because Moore used her position to
victimize a bedridden man in hospice, a standard-range sentence best served
her rehabilitative needs as well as society’s protection. See Macias, 968 A.2d
at 778 (stating, “The . . . court merely chose not to give the mitigating factors
as much weight as [the a]ppellant would have liked and decided that the facts
did not warrant . . . a sentence lower than the standard range. We cannot re-
weigh the sentencing factors and impose our judgment [instead]”). We
conclude the trial court did not abuse its discretion by imposing a standard-
range sentence on Moore.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/28/2022
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