Com. v. Moskowitz, R. ( 2018 )

J-S16037-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
Appellee :
:
v. :
:
ROCKY MOSKOWITZ :
: No. 1422 MDA 2017
Appellant :
Appeal from the Judgment of Sentence August 31, 2017
in the Court of Common Pleas of Bradford County
Criminal Division at No.: CP-08-CR-0000107-2017
BEFORE: BOWES, J., MURRAY, J., and PLATT*, J.
MEMORANDUM BY PLATT, J.: FILED APRIL 30, 2018
Appellant, Rocky Moskowitz, appeals from the judgment of sentence
imposed following his entry of an open guilty plea to two counts each of simple
assault and recklessly endangering another person.1 Appellant challenges the
discretionary aspects of his sentence. We affirm.
The trial court aptly set forth the relevant background of this case as
follows:
[Appellant] was charged with (i) five counts of Aggravated
Assault, under 18 Pa.C.S.A. §§ 2702(a)(8) and (9), each being
felonies of the first or second degree, (ii) six counts of Simple
Assault, under 18 Pa.C.S.A. § 2701(a)(1), each being
misdemeanors of the second degree, and (iii) six counts of
Recklessly Endangering Another Person, under 18 Pa.C.S.A. §
2705, each being misdemeanors of the second degree. The
charges arose after police responded to a report from an
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1 18 Pa.C.S.A. §§ 2701(a)(1) and 2705, respectively.
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* Retired Senior Judge assigned to the Superior Court.
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elementary school that one of their students disclosed being shot
by [Appellant] with an air soft bb gun. The investigation soon
revealed that five of the children in the home had allegedly been
shot with the air soft gun at close range by [Appellant] or hit with
the gun itself.
On June 12, 2017, [Appellant] entered a guilty plea to two
counts of Simple Assault, 18 Pa.C.S.A. § 2701(a)(1), graded as
misdemeanors of the first degree, with the understanding and
agreement that a deadly weapons enhancement[2] would apply to
one of the two counts. [Appellant] also pled guilty to two counts
of Recklessly Endangering Another Person, 18 Pa.C.S.A. § 2705,
both graded as misdemeanors of the second degree. As part of
the plea agreement, “[Appellant] can argue based on health
reasons for non-incarceration.” (N.T. Guilty Plea, 6/12/17, at 2-
3). Counsel for both parties and [Appellant] understood and
agreed that the deadly weapons enhancement would add six (6)
months of incarceration to the recommended minimum sentence
within the standard range. [Appellant] confirmed his intention to
plead guilty after listening to a description of the potential
penalties he faced for each count.
After some discussion about the nature of the weapon used
and whether it was a gun or a toy, [Appellant] and his counsel
acknowledged that the “Airsoft gun” at issue was “like a BB gun,”
and that such gun “could be a deadly weapon” in that it “shoots
rubber BB’s.” (Id. at 12). While [Appellant] believed it was a
“toy,” he acknowledged and agreed that the deadly weapon
enhancement was going to apply to one of the counts. (Id. at 9;
see id. at 13-14).
At the conclusion of the oral plea colloquy, [Appellant]
having previously completed a written plea colloquy with his
lawyer, the [trial court] accepted [Appellant’s] guilty plea as
knowing, voluntary and intelligent.
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2 “The deadly weapon enhancement provisions of the Sentencing Guidelines
provide that an enhancement ‘shall apply to each conviction offense for which
a deadly weapon is possessed or used.’ 204 Pa. Code § 303.10(a)(4).”
Commonwealth v. Tavarez, 174 A.3d 7, 10 (Pa. Super. 2017).
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At the sentencing hearing on August 31, 2017, [Appellant’s]
counsel, as expected, argued against incarceration.
Defense counsel submitted a letter from [Appellant’s doctor]
that stated [Appellant] would have difficulty sleeping if
incarcerated and that “[u]ndue discomfort is not advised.” (N.T.
Sentencing, 8/31/17, at 15; see id. at 10). [Appellant] also
offered a mental health evaluation [stating that he] suffers from
adjustment disorder with mixed anxiety and depression.
[Appellant] was given an opportunity to speak and confirmed that
he has had health difficulties since 2014 when he was electrocuted
at work, testifying that he has no function in three fingers, heart
damage, and limited use of his left leg. In fashioning an
appropriate sentence, the [trial court] considered all information
that was available, including that offered by [Appellant] and his
counsel.
The Probation Department, acknowledging this was
[Appellant’s] first contact with the criminal justice system,
recommended incarceration at the lowest end of the standard
range of the sentencing guidelines for the simple assault
conviction with the deadly weapon enhancement, and consecutive
sentences of probation for the other three convictions. The
guideline sentence form for simple assault with use of a deadly
weapon provided a minimum sentence of incarceration of six (6)
to nine (9) months within the standard range. There is no
mitigated range identified on the guideline sentence form but the
minimum in the aggravated range could be as much as twelve
(12) months.
The Commonwealth agreed with the recommendation of the
Probation Department in the Pre-sentence Investigation report,
noting that the affidavit of probable cause described [Appellant]
as perpetrating “a series of cruel acts to the young children.” (Id.
at 14). The Commonwealth also related that the “agreement was
that the weapons enhancement would apply.” (Id.).
The [trial court] imposed a sentence of total confinement
and supervision such that [Appellant] would undergo an
indeterminate period of incarceration for the conviction of simple
assault with a deadly weapon, the minimum of which would be six
(6) months, and the maximum of which would be twelve (12)
months. [Appellant] received consecutive orders of probation for
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an aggregate of eighteen (18) months for the three other counts.
The sentence was at the lowest end of the standard range.
(Trial Court Opinion, 11/30/17, at unnumbered pages 1-3) (citation formatting
provided; some record citations omitted). This timely appeal followed.3
Appellant raises one issue for our review: “[Whether] [t]he [trial] [c]ourt
erred in not considering Appellant’s health issues when imposing the deadly
weapons enhancement[] [b]ecause it believed that there was no mitigated
sentence or departure allowed under enhancement sentence[?]” (Appellant’s
Brief, at VI). He argues that the trial court “appeared confused as to the
application of the enhancement” and believed that it was required to sentence
him without taking into consideration the mitigating factors of his electrocution
and the resultant injuries and pain. (Id. at 10; see id. at 7-8).
Appellant’s issue challenges the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Rather, Appellant must
first meet his burden of satisfying the following four elements
before we will review the discretionary aspect of a sentence:
(1) whether appellant has filed a timely notice
of appeal, see Pa.R.A.P. 902 and 903; (2) whether
the issue was properly preserved at sentencing or in
a motion to reconsider and modify sentence, see
Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
fatal defect, Pa.R.A.P. 2119(f); and (4) whether there
is a substantial question that the sentence appealed
from is not appropriate under the Sentencing Code,
42 Pa.C.S.[ ] § 9781(b).
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3 Appellant filed a timely, court-ordered concise statement of errors
complained of on appeal on September 27, 2017. The trial court entered its
opinion on November 30, 2017. See Pa.R.A.P. 1925.
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Commonwealth v. Johnson-Daniels, 167 A.3d 17, 27 (Pa. Super. 2017),
appeal denied, 174 A.3d 1029 (Pa. 2017) (case citations and quotation marks
omitted).
In the instant case, Appellant met the first three elements by filing a
timely notice of appeal, preserving his issue at sentencing, and including a
Rule 2119(f) statement in his brief. Because “[o]ur case law has established
that application of the deadly weapons enhancement presents a substantial
question[,]” we will review the merits of his claim. Commonwealth v. Shull,
148 A.3d 820, 831 (Pa. Super. 2016) (citations omitted).
Our standard of review is as 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 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.
Johnson-Daniels, supra at 28 (citation omitted).
We begin by noting that where “the trial court has the benefit of a pre-
sentence report [PSI], we presume that the court was aware of relevant
information regarding the defendant’s character and weighed those
considerations along with any mitigating factors.” Commonwealth v.
Johnson, 125 A.3d 822, 827 (Pa. Super. 2015) (citation omitted). We further
note that the sentencing guidelines are not mandatory, and sentencing courts
retain broad discretion in sentencing matters. See Commonwealth v.
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Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014), appeal denied, 95 A.3d 275
(Pa. 2014). Likewise, “[[a]lthough] [t]he trial court lacks the discretion to
refuse to apply the deadly weapon sentencing enhancement, [t]he court’s
discretion comes into play when it is time to impose a sentence, once the court
determines the adjusted sentencing guideline ranges.” Commonwealth v.
Kneller, 999 A.2d 608, 614 (Pa. Super. 2010), appeal denied, 20 A.3d 485
(Pa. 2011) (citation omitted).
Here, at the sentencing hearing, the trial court heard from defense
counsel and Appellant regarding his numerous health ailments and financial
problems stemming from his work-related electrocution in 2014. (See N.T.
Sentencing, at 10-14). The Commonwealth noted that Appellant’s offenses
involved a series of cruel acts against children, and that the plea agreement
contemplated application of the weapons enhancement. (See id. at 14). The
trial court noted that it had reviewed the PSI, and explained its rationale for
the sentence as follows:
. . . [T]he Commonwealth was apparently insistent that . . .
in order to reach the plea agreement, that one of the counts would
have a deadly weapon enhancement. Otherwise, it wouldn’t have
been there. The fact that it’s there, and now it’s just being asked
to be essentially ignored, by [Appellant], I think is really not giving
. . . it’s really not honoring the agreement that was reached. . . .
The health concerns of [Appellant], I understand those. The
doctor suggests that you are going to have difficulty sleeping on
a mattress. Undue discomfort is not advised. Being in jail is not
a comfort to anybody, you know. And so, certainly I am
sympathetic to your health concerns but these are pretty serious
charges[.] . . . I agree with the probation department that
because of your history, because of your health situation, you
don’t deserve anything above what would be the standard, the
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lowest end of the standard range and that would be in each of the
other counts, probation. But with the one count that was, that
has the deadly weapon enhancement I think you need the six
months. I mean that’s what everybody contemplated, that’s what
was expected, based on what everybody knew about the case. So
I think that is what is appropriate and that’s what I’m going to
impose today. . . .
(Id. at 14-16; see id. at 1).
Following imposition of the sentence, defense counsel asked for
clarification and the following exchange took place:
[Defense counsel]: [Is] the court under the belief that it has no
authority to override the sentence as it pertains to him?
[Trial court]: No. I’m not under that impression. The guidelines
are simply guidelines. They are advisory.
[Defense counsel]: And the enhancement is not a mandatory
sentence.
[Trial court]: I understand that as well. . . .
(Id. at 19).
In its opinion, the trial court further explained that, in formulating an
appropriate sentence for Appellant, it took into consideration his health
difficulties, history, character, and rehabilitative needs; the nature and
circumstances of the crime, which involved violent acts against young
children; the impact on the multiple victims; the need to protect the
community; and the sentencing guidelines. (See Trial Ct. Op., at unnumbered
pages 3-4). Thus, the record reflects that the court was not confused
regarding application of the deadly weapons enhancement, and that it
thoroughly considered Appellant’s background, including his health issues,
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and the circumstances of the offense, and sentenced him accordingly.
Because we discern no abuse of discretion in the court’s imposition of
Appellant’s sentence, his issue on appeal merits no relief. See Johnson-
Daniels, supra at 28. Therefore, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/30/2018
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