Com. v. Merwarth, T. ( 2016 )

J-S79041-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
TIMOTHY MICHAEL MERWARTH, :
:
Appellant : No. 126 EDA 2016
Appeal from the Judgment of Sentence October 19, 2015
in the Court of Common Pleas of Lehigh County,
Criminal Division, No(s): CP-39-CR-0000047-2014
BEFORE: GANTMAN, P.J., MOULTON and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED DECEMBER 19, 2016
Timothy Michael Merwarth (“Merwarth”) appeals from the judgment of
sentence imposed following his guilty plea to two counts of sexual abuse of
children (by photographing the victim and possessing child pornography,
respectively), and one count each of endangering the welfare of children
(“EWOC”) and corruption of minors.1 We affirm.
At Merwarth’s guilty plea hearing, he admitted to the prosecution’s
following summation of the facts underlying his offenses:
On April 18th, 2013, the victim in this case, [D.J., Merwarth’s
step-daughter,] who was 17 years old at the time[,] ran away
from her residence, which was located at 3746 Route 309 in
North Whitehall Township, Lehigh County. She was found … a
couple of days later at approximately 3:43 in the morning at [a
business located] in North Whitehall Township.
When there, the state police found [the victim] and asked
her why she had run away. She indicated [] that [] it was
because she had been sexually assaulted by … Merwarth, and he
1
See 18 Pa.C.S.A. §§ 6312(b) and (d), 4304(a), 6301(a)(1)(ii).
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had been doing it for the past year and a half. [The victim] was
brought into the Child Advocacy Center … for a forensic
interview. …
[In the interview, the victim] indicated that [Merwarth] …
began sexually assaulting, [i.e.,] … having … vaginal and oral
intercourse[] with her[, beginning] around her 16th birthday ….
She disclosed that these incidents occurred two or three times a
week at different times of the day and night at her residence in
North Whitehall Township, [and] that it would always happen
whenever her mother was not at home.
[The victim] indicated that … [Merwarth] would bring her
to the room, [] remove her clothes, [and] threaten to harm her
if she did not comply. She also indicated that when it was over,
he would threaten to kill her if she told anybody, that he would
tell her he could get to her no matter what, and that [] he would
kill her and her whole family if anybody found out. She also
indicated that[,] at least on a couple of occasions[,] he
videotaped her.
Subsequent to [the victim’s forensic interview], there was
a search warrant conducted on [] Merwarth’s residence in North
Whitehall Township. Multiple computers and electronics were
seized from the residence, [and] given to the [S]tate [P]olice in
Bethlehem. The devices were sent to the State Police Computer
Crimes Unit for analysis.
Recovered from [Merwarth’s] computers were at least two
files [that] had video images, [with] at least one of [Merwarth]
engaging in vaginal intercourse with [the victim,] and at least
one where she was … performing oral sex on [] Merwarth.
Those videos were … shown to [the victim]. She identified
herself and [Merwarth] in the videos. She identified herself as
being 16 years old in those videos.
Subsequent to that, [] [Merwarth] was brought in to [be
interviewed by the] [S]tate [P]olice. He was [interviewed] in []
the presence of his attorney. … [] [T]he [S]tate [P]olice
informed [Merwarth] that he was not in custody, [and] he was
free to leave at any time …. [] [Merwarth] acknowledged that he
engaged in sexual intercourse with [the victim]. He
acknowledged that he knew he was making [] child pornography
when he was filming these acts, and he said he had access and
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watched the videos he made of [the sexual assaults] at least
four or five times after the encounter[s].
N.T., 7/8/14, at 16-19; see also id. at 19 (wherein Merwarth’s counsel
stated Merwarth’s assertion that the sexual encounters were consensual);
see also Trial Court Opinion, 2/3/16, at 2 (stating that Merwarth also
“deceived others into believing that [the victim’s] claims [of Merwarth’s
sexual abuse] were a figment of her imagination[,] until the videotapes [of
the assaults] were uncovered.”).
In February 2014, the Commonwealth charged Merwarth with the
above-mentioned crimes, among several others. On July 8, 2014, Merwarth
entered a negotiated guilty plea2 to the above-mentioned offenses.3 The
trial court deferred sentencing, and ordered the preparation of a pre-
sentence investigation report (“PSI”), as well as an assessment of Merwarth
by the Sexual Offenders Assessment Board as to whether he should be
classified as a sexually violent predator (“SVP”).
On October 19, 2015, after reviewing the PSI, the trial court imposed
the following sentences on Merwarth’s convictions: for sexual abuse of
2
In exchange for Merwarth’s plea, the Commonwealth agreed that the
minimum sentence would not exceed 15 years in prison.
3
Merwarth also entered a plea of nolo contendere to involuntary deviate
sexual intercourse (“IDSI”). The trial court subsequently permitted
Merwarth to withdraw his plea to the IDSI charge (which resulted in the
reinstatement of all of the original charges against Merwarth). However, the
instant appeal concerns only the sentence imposed on Merwarth’s
convictions of sexual abuse of children, EWOC and corruption of minors. The
record does not reveal the disposition on the IDSI charge.
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children (by photographing the victim) – 4 to 8 years in prison; for sexual
abuse of children (by possessing child pornography) – 3 to 6 years in prison;
for EWOC – 3 to 6 years in prison; and, for corruption of minors – 3 to 6
years in prison.4 The trial court ordered all of these sentences to run
consecutively, which resulted in an aggregate sentence of 13-26 years in
prison.5 On the same date, the trial court further ruled that Merwarth met
the criteria for being designated as an SVP.
Merwarth thereafter filed a timely post-sentence Motion challenging
the discretionary aspects of his sentence, which the trial court denied.
Merwarth filed a timely Notice of Appeal followed by a court-ordered
Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal.
Merwarth now presents the following issues for our review:
1. Whether the [sentencing] court abused its discretion by
departing above the [sentencing] guidelines and in making
the sentences consecutive?
2. Whether the [sentencing court’s stated] reasons [for the
sentences imposed] support or justify the length of the
sentence?
Brief for Appellant at 6. We will address Merwarth’s issues together as they
are related.
4
Notably to this appeal, these sentences were outside and above the
aggravated range of the applicable sentencing guidelines.
5
This sentence was below the statutory maximum that the court could have
imposed, of 15½ to 31 years in prison.
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Merwarth challenges the discretionary aspects of his sentence, from
which there is no automatic right to appeal. See Commonwealth v.
Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010).
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
We 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, 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.A. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)
(quotation marks and some citations omitted).
Here, Merwarth filed a timely Notice of Appeal and preserved his issue
in a post-sentence Motion. Merwarth also included a Rule 2119(f) Statement
in his brief. Accordingly, we will review Merwarth’s Rule 2119(f) Statement
to determine whether he has raised a substantial question.
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis. 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. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (citation
omitted); see also 42 Pa.C.S.A. § 9781(b).
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In his Rule 2119(f) Statement, Merwarth presents only the following
sentence upon which he relies for allowance of appeal: “Here the [trial]
court’s reasons for the sentences imposed, especially the consecutive aspect
of the multiple counts[,] which were departures above the guidelines, do not
justify the sentences.” Brief for Appellant at 5.
Despite the baldness of the claim Merwarth presents in his Rule
2119(f) Statement, we determine that he has raised a substantial question.
See Commonwealth v. Holiday, 954 A.2d 6, 10 (Pa. Super. 2008) (stating
that “[a] claim that the sentencing court imposed a sentence outside of the
guidelines without specifying sufficient reasons presents a substantial
question for our review.”) (citing Commonwealth v. Rodda, 723 A.2d 212,
214 (Pa. Super. 1999) (en banc)).
Merwarth argues that the trial court abused its discretion in imposing
an unreasonable aggregate sentence, which was outside and above the
aggravated range of the sentencing guidelines, without stating adequate
reasons for the sentence imposed. Brief for Appellant at 10-11. In support
of this claim, Merwarth advances only the following sentence of substantive
argument: “To justify the sentence, the [sentencing] court relied on
[Merwarth’s] deflecting blame away from himself and blaming others[;] his
lack of remorse …; the repeated nature of the offense[s]; mere allegations
that this was a ‘house of horrors’[;] and [Merwarth’s] supposed cleverness in
fooling authorities.” Id. (internal citations to record omitted).
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We review discretionary aspects of sentence claims under the following
standard: “[S]entencing 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.” Commonwealth v. Fullin, 892 A.2d 843,
847 (Pa. Super. 2006).
The Sentencing Code sets forth the considerations a trial court must
take into account when formulating a sentence, stating that “the court shall
follow the general principle that the sentence imposed should call for
confinement that is consistent with 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.” 42 Pa.C.S.A.
§ 9721(b). A sentencing court has broad discretion in choosing the range of
permissible confinement that best suits a particular defendant and the
circumstances surrounding his crime. Commonwealth v. Walls, 846 A.2d
152, 154-55 (Pa. Super. 2004). Where, as here, a sentencing court imposes
a sentence outside of the sentencing guidelines, the court must provide in
open court a contemporaneous statement of reasons in support of its
sentence. 42 Pa.C.S.A. § 9721(b). When doing so,
a trial judge … [must] demonstrate on the record, as a proper
starting point, its awareness of the sentencing guidelines.
Having done so, the sentencing court may deviate from the
guidelines, if 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, so long as it also states of record the factual basis
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and specific reasons which compelled it to deviate from the
guideline range.
Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012)
(citations, paragraph break and brackets omitted).
Finally, when evaluating a challenge to the discretionary aspects of a
sentence, it is important to remember that the sentencing guidelines are
purely advisory in nature. Commonwealth v. Yuhasz, 923 A.2d 1111,
1118 (Pa. 2007); see also Walls, 926 A.2d at 963 (stating that “rather
than cabin the exercise of a sentencing court’s discretion, the [sentencing]
guidelines merely inform the sentencing decision.”).
Here, the trial court concisely addressed Merwarth’s challenge to his
sentence, adeptly summarized the applicable law, and determined that the
sentences imposed were reasonable and warranted under the circumstances
of this case. See Trial Court Opinion, 2/3/16, at 9-13. The trial court’s
cogent analysis is supported by the law and the record, and we conclude
that the court stated adequate reasons for deviating from the sentencing
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guidelines, and ordering the sentences to run consecutively.6 Accordingly,
we affirm on this basis in rejecting Merwarth’s issues on appeal. See id.;
see also id. at 5 (stating that “[t]he sentencing guidelines were also
considered, but a deviation was warranted. The victim was abused for an
extended period of time, and had nowhere to turn because she was unable
to find anyone to believe her. She was raised in a house of horrors by a
master manipulator. Even after the videos were uncovered, [Merwarth]
attempted to manipulate the investigators by suggesting the victim was the
aggressor.”) (footnote omitted); see also id. at 6 (stating that Merwarth’s
“exploitation of the victim only came to an end because of the accidental
discovery of the visual documentation of his acts.”).
Based upon the foregoing, we discern no abuse of discretion by the
sentencing court in imposing Merwarth’s sentences.
Judgment of sentence affirmed.
6
We additionally observe that the sentencing court here had the benefit of a
PSI, which the court expressly stated it had considered prior to imposing
Merwarth’s sentence. N.T., 10/19/15, at 84. A “sentencing judge can
satisfy the requirement that reasons for imposing sentence be placed on the
record by indicating that he or she has been informed by the [PSI]; thus
properly considering and weighing all relevant factors.” Commonwealth v.
Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009) (citation omitted); see
also id. (stating that where a sentencing court is informed by a PSI, its
discretion generally should not be disturbed).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/19/2016
- 10 -
Circulated 11/30/2016 02:12 PM
IN THE COURT OF COMMON PLEAS OF LEIDGH COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
vs. : NO. CR-47-2014
Superior Court No.: 126 EDA 2016
TIMOTHY MERWARTH
*****
Appearances:
Heather Gallagher, Chief Deputy District Attorney
For the Commonwealth
Robert Sletvold, Esquire
For the Appellant
*****
OPINION
Robert L. Steinberg, Judge:
On October 19, 2015, the appellant, Timothy Merwarth, was sentenced to not less
than thirteen (13) years nor more than twenty-six (26) years following his guilty pleas to charges
of Sexual Abuse of Children 1 (two counts), Endangering the Welfare of a Child,2 and Corruption
of Minors. 3 He was also found by "clear and convincing evidence" to be a "sexually violent
predator".4 The appellant sexually exploited his step-daughter multiple times beginning when
she was sixteen (16), and videotaped those sexual acts for his own gratification. He also
1 18 PaC.S. § 63 J 2(b) and (d).
2 18 PaC.S. § 4304(a).
3 18 PaC.S. § 6301(a)(l)(ii).
4 42 Pa.C.S. § 9799.24(e)(3).
deceived others into believing that his step-daughter's claims were a figment of her imagination
until the videotapes were uncovered. He then admitted to vaginal and oral intercourse with his
step-daughter, and creating what he acknowledged was child pornography. However, once his
deviant behavior was uncovered, he claimed that acts with his step-daughter were consensual.
A Notice of Appeal was filed on January 5, 2016.5 Pursuant to Pa.R.A.P.
1925(b ), the appellant filed a timely "Statement Of Errors Complained Of On Appeal" alleging
that this Court abused its discretion for the following reasons: (1) deviating from the standard
range of the guidelines and imposing consecutive sentences; and (2) the reasons stated for the
sentence "do [not] support or justify the length of the sentence imposed".
Background
On April 21, 2013, the victim, who was the subject of a missing persons report,
was located by troopers with the Pennsylvania State Police. She told them that she had run away
from her home because the appellant, her step-father, had been sexually abusing her. It was
determined that he had been doing so for approximately a year and a half, since she was sixteen.
The appellant initially denied the accusations and attempted to cast doubt on the
victim's credibility. He may have succeeded, if not for the discovery of the videos and pictures
of him sexually abusing his step-daughter on the hard drive of his computer. A former resident
of appellant's household accidentally discovered the corroborating evidence after he purchased
the old hard drive from the appellant, and while configuring the hard drive for his computer,
discovered the videos and photographs.
5 On December 7, 2015, the "Defendant's Post-Sentence Motion To Reconsider Sentence" was denied.
2
The appellant was re-interviewed by the state police with his counsel, and
admitted both the sexual acts and the creation of child pornography. It was now his contention
that the sexual acts were consensual.
Sexually Violent Predator
Hearing and Sentencing
The appellant entered his guilty plea to the aforementioned charges, and also a
nolo contendre plea to Involuntary Deviate Sexual Intercourse. However, a "Motion To
Withdraw A Guilty Plea" was filed, and a hearing on that motion was held on December 22,
2014. The only charge that the appellant requested to withdraw was his nolo contendre plea to
Involuntary Deviate Sexual Intercourse. He was permitted to do so, but with the reinstatement of
all of the original charges.6 Sentencing would also proceed on the charges of Sexual Abuse of
Children, Endangering the Welfare of a Child, and Corruption of Minors.
A presentence report was ordered and reviewed prior to sentencing. Additionally,
the Commonwealth filed a "Praecipe To Classify Defendant As A Sexually Violent Predator".
Thereafter, appellant's counsel filed a "Motion For Authorization To Hire Expert", which was
approved, and funds were allotted for Frank Dattilio, Ph.D.7
The sole witness at the hearing to determine if the appellant was a sexually violent
predator was Veronique Valliere, Psy.D., an expert in the evaluation of sex offenders. She
prepared a Sex Offender Evaluation in this case and found the appellant to be a sexually violent
predator.8 She discovered that throughout the victim's lifetime the appellant "effectively
controlled, isolated, and abused [her] .... His sexual assault of her was an escalation of his
6 The original charges included Rape, Involuntary Deviate Sexual [ntercourse, Sexual Assault, Obscene and Other Sexual
Materials and Performances, Terroristic Threats, and Indecent Assault (two counts).
7 Dr. Dattilio was not called as a defense witness at the Sexually Violent Predator hearing.
8
Commonwealth's Exhibit l and 2, Sex Offender Evaluation.
3
entitlement, feelings of ownership, and ongoing abuse and oppression of this child. He portrayed
her as unreliable, crazy, and non-credible. He became so bold in his offense behavior, he
videotaped it to view for his own gratification later. "9
Dr. Valliere also found that the appellant had both a mental abnormality, namely
Other Specified Paraphillic Disorder to non-consent and cruelty, and a personality disorder.
"[H]is diagnoses of personality disorder would meet the criteria for Other Specified Personality
Disorder with characteristics of antisocial personality disorder, narcissistic personal[ity] disorder,
and Sadistic traits [sic]."10 In that regard, the appellant "has both a deviant sexual arousal and a
personality disorder".11 He "displays persistent, pathological traits of egocentricity, callousness,
disregard for the rights of others or the impact of his behavior, cruelty, deceptiveness,
exploitiveness, a lack of empathy, and a lack ofremorse."12 The Sex Offender Evaluation details
the history of physical and sexual abuse perpetrated by the appellant toward the victim and other
members of his family.P A total of twenty-one (21) referrals were made to the Office of
Children and Youth.14 One of those incidents resulted in a charge of Simple Assault for
repeatedly striking one of the children, and hanging her by her clothing in the basement for hours
at a time.15
Finally, the appellant's behavior was deemed predatory in that it was done to
promote "a secretive, sexually abusive relationship with a child he had previously physically
victimized over years".16 His "personality pathology, propensity for cruelty, and deviant arousal
9
Sex Offender Evaluation at p. 8.
10
If!. at p. 9; Notes of Testimony, SVP Hearing and Sentencing (hereinafter N.T.S.), pp. 17-18.
11 Id. al pp. 8-9; N.T.S. at pp. 19-20.
12 Id. at p. 8; N.T.S. at p. 19.
13 !!!. at pp. 4-5.
14 If!. at p, 4.
15
Presentence Report (hereinafter PSI), p. 6.
16 Sex Offender Evaluation, p. 10.
4
are persistent conditions. Both a deviant arousal pattern and a personality disorder are lifetime
conditions that can be only managed with effort and motivation."?
The appellant's daughter, Ashley Merwarth, testified during the sentencing
proceedings, and described the appellant's history of abuse. "I have spent the last 30 years of my
life enduring his abuse and dealing with the aftermath of that. And that's just me. That's not
including all of the others. He deserves no mercy, no options."18
The appellant maintained that he did not coerce or force the victim to engage in
any sexual acts. He described himself as a "good man" who made a "mistake".19
Prior to the imposition of appellant's sentence, this Court reviewed the
presentence report and the Sex Offender Evaluation, as well as the supporting testimony of Dr.
Valliere. All of the sentencing testimony was considered in determining the sentence for the
appellant. The Sentencing Guidelines were also considered, but a deviation was warranted.I?
The victim was abused for an extended period of time, and had nowhere to turn because she was
unable to find anyone to believe her. She was raised in a house of horrors by a master
manipulator. Even after the videos were uncovered, he attempted to manipulate the investigators
by suggesting the victim was the aggressor.
The sentences imposed for Sexual Abuse of Children under 18 Pa.C.S. § 6312(b)
was not less than four (4) nor more than eight (8) years, and for 18 Pa.C.S. § 6312(d) was not
less than three (3) years nor more than six (6) years. Counsel agreed that the two offenses did
not merge. In the words of defense counsel, "one is producing and one is possessing".21 The
appellant was also sentenced to not less than three (3) years nor more than six (6) years for the
17
Sex Offender Evaluation at p. 9.
18 N.T.S. at p. 68.
19 lg. at p. 77.
20 Id. at pp. 85, 89.
21 lg. at p. 64.
5
charge of Endangering the Welfare of a Child, and not less than three (3) years nor more than six
(6) years for the charge of Corruption of Minors. All of the sentences were ordered to run
consecutively, which resulted in a minimum sentence of thirteen (13) years and a maximum of
twenty-six (26) years imprisonment.
Discussion
The appellant sexually exploited his teenage step-daughter for approximately
eighteen (18) months. His corruption of her not only included vaginal and oral intercourse, but
also the filming of those acts for his own gratification. His exploitation of the victim only came
to an end because of the accidental discovery of the visual documentation of his acts. He had
duped others into believing that the victim's complaints were imaginary. In fact, her complaints
were genuine, and it was only after she ran away and was located by the state police that her
torment at the hands of the appellant ended. A fair conclusion from the evidence is that the
appellant abused the victim sexually, physically, and emotionally.
The sentences imposed, which were less than the statutory maximum (15 Y2 to 31
years), deviated from the Sentencing Guidelines. During the sentencing hearing, this Court
indicated its intention to do so.22 The appellant contends, however, that it was error to deviate
from the guidelines, impose consecutive sentences, and that the stated reasons for imposing his
sentence do not justify its length. This Court disagrees.
"It is well settled that, with regard to the discretionary aspects of sentencing, there
is no automatic right to appeal." Commonwealth v. Edwards, 71 A.3d 323, 329 (Pa.Super.
2013); Commonwealth v. Griffin, 65 A.3d 932 (Pa.Super. 2013); Commonwealth v. Ladamus,
896 A.2d 592, 595 (Pa.Super. 2006); Commonwealth v. Shugars, 895 A.2d 1270, 1274
22
N.T.S. at pp. 85, 89.
6
(Pa.Super. 2006); Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa.Super. 2003). The appellant
must demonstrate that a substantial question exists concerning the sentence. Commonwealth v.
Lee, 876 A.2d 408, 411 (Pa.Super. 2005).
"The determination of what constitutes a substantial question must be evaluated
on a case-by-case basis." Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010);
Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.Super. 2005). As stated in Moury "[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."' Id. See also Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013). Bald
assertions of sentencing errors do not constitute a substantial question. Mourv, 992 A.2d at 170;
Commonwealth v. Trippett, 932 A.2d 188, 202 (Pa.Super. 2007) quoting Commonwealth v.
Mouzon, 812 A.2d 617, 620 (Pa. 2002). Likewise, a substantial question requires something
more than alleging the failure to consider a mitigating circumstance. Moury, 992 A.2d at 171;
see also Commonwealth v. Ladamus, 896 A.2d at 595; Commonwealth v. Cannon, 954 A.2d
1222, 1229 (Pa.Super. 2008)(a claim of inadequate consideration of mitigating circumstances
does not raise a substantial question for review). However, a claim that the court sentenced
outside the guidelines does raise a substantial question which is reviewable on appeal.
Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa.Super. 1999)(en bane); Commonwealth v.
Davis, 737 A.2d 792, 798 (Pa.Super. 1999). On the other hand, the appellant's claim regarding
the imposition of consecutive versus concurrent sentences generally does not raise a substantial
question. Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa.Super. 2011).
7
If the merits of the appellant's sentencing claim must be considered, then this
Court's decision-making is scrutinized under an abuse of discretion standard. Commonwealth v.
Walls, 926 A.2d 957, 961 (Pa. 2007); Commonwealth v. Hoch, 936 A.2d 515, 519 (Pa.Super.
2007). In Commonwealth v. Antidormi, 84 A.3d 736, 760-761 (Pa.Super. 2014)(intemal
citations and quotations omitted), the standard of review of a challenge to the discretionary
aspects of sentence was deemed well-settled and explained 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.
In every case in which the court imposes a sentence for a
felony or a misdemeanor, 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.
The sentencing guidelines are not mandatory, and sentencing
courts retain broad discretion in sentencing matters, and
therefore, may sentence defendants outside the [g)uidelines.
In every case where the court imposes a sentence ... outside
the guidelines adopted by the Pennsylvania Commission on
Sentencing . . . the court shall provide a contemporaneous
written statement of the reason or reasons for the deviation
from the guidelines. However, this requirement is satisfied
when the judge states his reasons for the sentence on the
record and in the defendant's presence. Consequently, all
that a trial court must do to comply with the above procedural
requirements is to state adequate reasons for the imposition
of sentence on the record in open court.
When imposing sentence, a court is required to consider the
particular circumstances of the offense and the character of
the defendant. In considering these factors, the court should
refer to the defendant's prior criminal record, age, personal
characteristics and potential for rehabilitation. Where pre-
sentence reports exist, we shall . . . presume that the
8
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.
See also Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa.Super. 2006) citing Rodda, 723 A.2d
at 214.
A review of the sentencing proceeding reflects this Court's awareness and
consideration of the Sentencing Guidelines, and a conscious decision to deviate from the
guidelines. Furthermore, the reasons for the upward departure from the guidelines was
adequately explained.
This Court also considered the presentence report. See Commonwealth v.
Rhoades, 8 A.3d 912, 919 (Pa.Super. 2010) quoting Commonwealth v. Moury, 992 A.2d at 171(Pa.Super. 201 O)(holding that where the sentencing court had the benefit of a presentence
investigation report it is assumed that the sentencing court was aware of relevant information
regarding the defendant's character and weighed those factors along with mitigating statutory
factors. See also Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988); Commonwealth v.
Pollard, 832 A.2d 517, 526 (Pa.Super. 2003). The presentence report reinforced the severity of
all of the offenses and their impact on the victim. It also highlighted appellant's rationalizations
for his conduct, including his deranged assertion that the videos were for his own protection.
This Court also had the report and testimony of Dr. Veronique Valliere, whose
opinions supported the determination that the appellant was a sexually violent predator. Her
opinions, which are explained infra, point out that appellant's "traits and sexual arousal patterns
are well established. His age is not protective regarding sexual recidivism."23 His "deviant
arousal pattern and O personality disorder are lifetime conditions that can be only managed with
23
Sex Offender Evaluation, at p. 8.
9
effort and motivation."24 Dr. Valliere in her testimony further explained that "treating people
with personality disorders is very difficult and arduous as well as treating people the paraphillic
disorder and be has both. "25
Nothing in the appellant's character points toward the potential for rehabilitation.
His criminal history is not lengthy, but demonstrates that he treated his family as chattels to do
with as he pleased. The intervention by Lehigh County Children and Youth Services, which
includes "thousands of pages on this family"26 did nothing to change the behavior of the
appellant. Moreover, the appellant's comments at sentencing reflect a lack of any perspective
regarding the severity of his offense. This Court, after listening to them, was reminded of the
following quote: "Abusers don't question themselves. They don't ask if they are the problem.
They always say the problem is someone else."27
A sentence that exceeds the Sentencing Guidelines does make the sentence
unreasonable. A sentence outside the guidelines is permitted and as stated in Commonwealth v.
P.L.S., 894 A.2d 120, 129-130 (Pa.Super. 2006) quoting Commonwealth v. Cunningham, 805
A.2d 566, 575 (Pa.Super. 2002):
[I]n exercising its discretion, the sentencing court may
deviate from the guidelines, if 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 offenses as it relates to the impact
on the life of the victim and the community, so long as he
also states of record the factual basis and specific reasons
which compelled him to deviate from the guideline range.
The sentencing guidelines are merely advisory and the
sentencing court may sentence a defendant outside of the
guidelines so long as it places its reasons for the deviation of
the record.
24 Id. at p. 9.
25 N.T.S. at p. 34.
26 PSI at p. 84.
27
N.T.S. at p. 84.
10
The reasons for deviating from the guidelines comply with these requirements,
and are supported by all the relevant facts and circumstances.28 The severity of appellant's
sentence reflects the need to protect the public from an individual who, in all likelihood, cannot
be rehabilitated. His extended abuse of his step-daughter suggests a deep seated pathology.
Likewise, the appellant used his parental position to take advantage of the victim's dependence
on him, and by doing so, he corrupted her.
The decision to impose consecutive sentences for these offenses was also not an
abuse of discretion. It bas frequently been explained that the imposition of consecutive rather
than concurrent sentences lies within the sound discretion of the sentencing court.
Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa.Super. 2008). Additionally, a challenge to
the imposition of consecutive rather than concurrent sentences generally does not present a
substantial question regarding the discretionary aspects of sentence. Id.; see also Prisk, 13 A.3d
at 533 ("Generally, Pennsylvania law 'affords the sentencing court discretion to impose its
sentence concurrently or consecutively to other sentences being imposed at the same time or to
sentences already imposed. Any challenge to the exercise of this discretion ordinarily does not
raise a substantial question."'); Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa.Super.
l 995)(holding a defendant is not entitled to a "volume discount" for his crimes by having all
sentences run concurrently).
The one limited exception to this conclusion is when the imposition of a
consecutive sentence "raises the aggregate sentence to, what appears upon its face to be, an
excessive level in light of the criminal conduct at issue in the case." Commonwealth v.
Mastromarino, 2 A.3d 581, 587 (Pa.Super. 2010); see also Commonwealth v. Dodge, 859 A.2d
28 N.T.S. at pp. 84-89.
11
771 (Pa.Super. 2004), vacated, 935 A.2d 1290 (2007), remanded to 957 A.2d 1198 (Pa.Super.
2008), appeal denied, 980 A.2d 605 (Pa. 2009), vacated, 26 A.3d 1204 (Pa.Super. 2011), affd,
77 A.3d 1263 (Pa.Super. 2013) appeal denied, 91 A.3d 161 (Pa. 2014)(holding consecutive
standard range sentences on thirty-seven (37) counts of theft-related offenses for aggregate
sentence of fifty-two and one-half (52 Yi) years to one hundred and eleven (111) years
imprisonment raised a substantial question). Commonwealth v. Coulverson, 34 A.3d 135(Pa.Super. 201 l)(maxirnum sentence of ninety (90) years for multiple offenses including rape,
sexual assault, aggravated assault, robbery, and burglary was "clearly unreasonable").
In Mastromarino, 2 A.3d at 588, an aggregate sentence of not less than twenty-
five (25) years nor more than fifty-eight (58) years for selling human body parts from two
hundred forty-four (244) corpses did not present a substantial question. The appellant was the
"mastermind" behind the illegal harvesting of body parts, and so the decision to sentence
consecutively did not raise the aggregate sentence to an excessive level in light of the criminal
conduct. In Prisk, supra, an aggregate sentence of not less than six hundred and thirty-three
(633) years nor more than one thousand five hundred (1,500) years imprisonment was imposed
for three hundred fourteen (314) offenses, including multiple counts of rape, involuntary deviate
sexual intercourse, and indecent assault. In light of the "violent criminal conduct" the sentence
was not found to be excessive. Finally, in Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595(Pa.Super. 2010), an aggregate sentence of not less than twenty (20) years nor more than forty
(40) years for kidnapping, robbery, burglary and other offenses, did not raise a substantial
question. It was explained that Dodge should not be read to mean "that a challenge to the
consecutive nature of a standard range sentence always raises a substantial question or
constitutes an abuse of discretion." Id. at 598.
12
Finally, the appellant's rehabilitative needs were considered, but pale in
comparison with the harm he caused to the victim and his family. He has never demonstrated
nor suggested a willingness to change his aberrant behavior. In the words of Coulverson, supra,it does not appear that the appellant "might succeed at rehabilitation after serving a substantial
term of O incarceration". Id. at 150.
This Court in imposing sentence did not abuse its discretion, and adhered to the
requirements of 42 Pa.C.S. § 9721(b):
[T]he court shall follow the general principle that the
sentence imposed should call for confinement that is
consistent with 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.
See also Commonwealth v. Downing, 990 A.2d 788, 794 (Pa.Super. 2010).
For all the foregoing reasons, the judgment of sentence should be affirmed.
13
CERTIFICATE OF SERVICE
£..v; {{ U·-V .5( Z...r /2.ct6
I, ROBERT E. SLETVOLD, ESQUIRE, certify that ~-tms-4ty served the
forgoing document to the parties listed below by sending a copy by first-class mail, postage pre-
paid.
James B. Martin, District Attorney
Lehigh County Courthouse
455 W Hamilton Street
Allentown PA 18101
DATE.1/27/UJt(,
12