Com. v. A.S. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
A.S.,
Appellant No. 1366 WDA 2015
Appeal from the Judgment of Sentence Entered on June 24, 2015
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s):
CP-02-CR-0010399-2014
CP-02-CR-0010402-2014
BEFORE: BENDER, P.J.E., RANSOM, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 09, 2017
Appellant, A.S.,1 appeals from the judgment of sentence of an
aggregate term of 7½-15 years’ incarceration, following his open plea to
sexual offenses involving two minor victims, both of whom are Appellant’s
younger siblings. Appellant’s sole claim raised in this appeal challenges the
discretionary aspects of his sentence. After careful review, we vacate the
judgment of sentence and remand for resentencing.
The trial court did not provide any summary of the pertinent facts
giving rise to Appellant’s guilty plea in its Pa.R.A.P. 1925(a) opinion.
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1
Appellant’s name, the victims’ names (Appellant’s siblings), as well as
names of Appellant’s other family members, have been omitted from this
memorandum in order to protect the victims’ identities.
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However, the Commonwealth made the following statement during
Appellant’s guilty plea hearing:
[Appellant], who is [the victims’] biological brother, went to
Indiana Regional Medical Center for treatment. At that time he
got a psychological evaluation and made statements to the
psychiatrist stating that he had inappropriate sexual contact with
his younger siblings.
From there … the two children were forensically
interviewed, where they made disclosures. And [Appellant] also
made statements to the detective in this case saying that he had
touched [his brother’s] bare penis with his hand between 12/13
and 5/14 at their residence.
And he also stated that he had touched [his sister’s]
vagina, her breasts with his hands, he had her touch his front
private parts with her hands more than one time, again,
between December of 2013 and May of 2014. And then he did
admit that there was penetration involved….
N.T. Guilty Plea Hearing, 2/17/15, at 7-8. At the time of the hearing,
Appellant was 19 years old. Id. at 3. The victims in this case, his twin
siblings, were born in July of 2004. Thus, the conduct giving rise to
Appellant’s charges appears to have occurred when he was 18 years old, and
when his siblings were 8 years old.
On August 28, 2014, the Commonwealth charged Appellant with
numerous sexual offenses at CP-02-CR-0010399-2014 (hereinafter,
“10399”). Approximately two weeks later, additional charges were filed
against Appellant at CP-02-CR-0010402-2014 (hereinafter, “10402”). On
February 17, 2015, Appellant entered a guilty plea at 10399 to indecent
assault, 18 Pa.C.S. § 3126(a)(7) (complainant less than 13 years of age);
unlawful contact with a minor, 18 Pa.C.S. § 6318(a)(1); endangering the
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welfare of children, 18 Pa.C.S. § 4304(a)(1); and corruption of minors, 18
Pa.C.S. § 6301(a)(1)(ii). That same day, Appellant entered a guilty plea at
10402 to sexual assault, 18 Pa.C.S. § 3124.1; incest, 18 Pa.C.S. §
4302(b)(1) (complainant less than 13 years of age); two counts of indecent
assault (complainant less than 13 years of age); endangering the welfare of
children; corruption of minors; and unlawful contact with a minor.
Sentencing was deferred for the production of a pre-sentence
investigation (hereinafter, “PSI”) report. On June 24, 2015, the trial court
sentenced Appellant to 2½-5 years’ incarceration for indecent assault, and to
no further penalty for the remaining counts at 10399. The court also
sentenced Appellant to a consecutive term of 5-10 years’ incarceration for
sexual assault, and to no further penalty for the remaining counts at 10402.
Thus, Appellant received an aggregate sentence of 7½-15 years’
incarceration, for his convictions at 10399 and 10402.2
On August 7, 2015, Appellant filed a timely3 motion to modify his
sentence, which was denied without a hearing on August 13, 2015.
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2
As a result of these convictions, the trial court ordered Appellant to register
for life as a Tier 3 offender under Pennsylvania’s Sexual Offender
Registration and Notification Act. See 42 Pa.C.S. § 9799.14(c).
3
Appellant initially filed a motion for an extension of time to file post-
sentence motions on June 30, 2015. The trial court failed to rule on that
motion in a timely fashion. Subsequently, on July 22, 2015, following a
change in counsel (trial counsel was permitted to withdraw on July 7, 2015),
Appellant’s newly appointed public defender, and current counsel for
Appellant, filed a motion requesting, inter alia, that the trial court accept a
(Footnote Continued Next Page)
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Appellant filed a timely notice of appeal, and then filed a timely, court-
ordered Rule 1925(b) statement. The trial court issued its Rule 1925(a)
opinion on January 14, 2016.
Appellant now presents the following question for our review: “Did the
trial court violate 42 Pa.C.S.[] § 9721(b) by focusing on improper factors,
including vague allegations of crimes for which [Appellant] was never
charged, and by disregarding mitigating evidence, including [Appellant]’s
rehabilitative needs?” Appellant’s Brief, at 7.
Appellant’s claim implicates the discretionary aspects of the trial
court’s sentencing decision.
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.
_______________________
(Footnote Continued)
nunc pro tunc post-sentence motion and/or a supplemental post-sentence
motion. On July 24, 2015, the trial court issued an order granting Appellant
leave to file a nunc pro tunc post-sentence motion. Nevertheless, the trial
court does not characterize Appellant’s August 2015 post-sentence motion
as having been filed nunc pro tunc. See Trial Court Opinion (hereinafter,
“TCO”), 1/14/16, at 2 (“A timely Post-Sentence Motion to Modify Sentence
was filed and was denied on August 13, 2015.”). In any event, whether
Appellant’s August 2015 post-sentence motion was timely filed or filed by
leave of court nunc pro tunc, the trial court ultimately accepted Appellant’s
motion as having preserved the claims now presented for our review.
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Commonwealth v. Hoch, 936 A.2d 515, 517–18 (Pa. Super. 2007)
(quoting Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super.
2006)).
Moreover,
[c]hallenges to the discretionary aspects of sentencing do
not entitle an appellant to review as of right. Commonwealth
v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must
invoke this Court's jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to determine: (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.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006)
(internal citations omitted). 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. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.
Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis.
Commonwealth v. Paul, 925 A.2d 825, 828 (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.” Sierra, supra at 912-
13.
As to what constitutes a substantial question, this Court
does not accept bald assertions of sentencing errors.
Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.
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2006). An appellant must articulate the reasons the sentencing
court's actions violated the sentencing code. Id.Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).
Instantly, Appellant timely appealed his sentence, after having
preserved his sentencing claims in a post-sentence motion. Appellant has
also provided a Rule 2119(f) statement in his appellate brief, which purports
to offer reasons why his sentencing claim presents a substantial question for
our review. We agree with Appellant that he presents a substantial question
for our review. See Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa.
Super. 2006) (concluding that the appellant raised a substantial question
where it was alleged that the trial court failed to properly consider the
factors set forth in 42 Pa.C.S. § 9721(b)); Commonwealth v. Stewart,
867 A.2d 589, 592 (Pa. Super. 2005) (“Based on [the a]ppellant's assertion
that the sentencing court considered improper factors in placing the
sentence in the aggravated range, we conclude that [the a]ppellant presents
a substantial question on appeal.”); Commonwealth v. Penrod, 578 A.2d
486, 490 (Pa. Super. 1990) (concluding allegation that sentencing court
considered facts not of record raises a substantial question). Accordingly,
we now turn to the merits of Appellant’s claim.
A summary of pertinent facts related to Appellant’s sentence is
necessary to discuss the various aspects of his multi-part claim. First,
Appellant’s sentences at 10399 and 10402 were both above the standard
guideline sentencing ranges for their respective offenses. It is undisputed
that Appellant had no prior adult criminal record, and no prior juvenile
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record, when he was sentenced by the trial court on June 24, 2015.
Consequently, Appellant’s prior record score (hereinafter, “PRS”) was zero.
With regard to the sentence imposed at 10399 for indecent assault under
Section 3126(a)(7), the offense gravity score (hereinafter, “OGS”) for that
offense is six. The standard range guideline sentence for that PRS/OGS
pairing is a minimum sentence of 3-12 months’ incarceration, with the
aggravated/mitigated range modifier of +/- 6 months. See 204 Pa.Code §
303.16. The trial court sentenced Appellant to 2½-5 years’ (30-60 months’)
incarceration for this offense. Therefore, Appellant’s sentence for indecent
assault at 10399 was a full year above the aggravated sentencing range
recommendation and, thus, his sentence fell outside the guidelines. With
regard to the sentence imposed at 10402 for sexual assault under Section
3124.1, the OGS for that offense is eleven. The standard range guideline
sentence for this PRS/OGS pairing is a minimum sentence of 36-54 months’
incarceration, with the aggravated/mitigated range modifier of +/- 12
months. Id. The trial court sentenced Appellant to 5-10 years’ (60-120
months’) incarceration for that offense. Therefore, Appellant’s sentence for
sexual assault at 10402 was in the aggravated sentencing range, but still
within the guidelines.
Case law and statutory constraints provide additional guideposts for
our review of the trial court’s discretion in imposing these sentences:
[42 Pa.C.S. §] 9781(c) specifically defines three instances in
which the appellate courts should vacate a sentence and
remand: (1) the sentencing court applied the guidelines
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erroneously; (2) the sentence falls within the guidelines, but is
“clearly unreasonable” based on the circumstances of the case;
and (3) the sentence falls outside of the guidelines and is
“unreasonable.” 42 Pa.C.S. § 9781(c). Under 42 Pa.C.S. §
9781(d), the appellate courts must review the record and
consider the nature and circumstances of the offense, the
sentencing court's observations of the defendant, the findings
that formed the basis of the sentence, and the sentencing
guidelines. [Commonwealth v.] Walls, [926 A.2d 957,] 963
[(Pa. 2007)] (quoting 42 Pa.C.S. § 9781(d)). The Walls Court
specifically admonished that the weighing of factors under 42
Pa.C.S. § 9721(b) was exclusively for the sentencing court, and
an appellate court could not substitute its own weighing of those
factors. Id. at … 966. The primary consideration, therefore, is
whether the court imposed an individualized sentence, and
whether the sentence was nonetheless unreasonable for
sentences falling outside the guidelines, or clearly unreasonable
for sentences falling within the guidelines, pursuant to 42
Pa.C.S. § 9781(c). Id. at … 967.
Commonwealth v. Bowen, 975 A.2d 1120, 1123–24 (Pa. Super. 2009).
Here, Appellant’s sentence for indecent assault fell outside the
guidelines. Accordingly, we review whether that sentence was
“unreasonable.” Id. Appellant’s sentence for sexual assault fell within the
aggravated range of the sentencing guidelines, but not outside of those
guidelines, therefore we review whether that sentence was “clearly
unreasonable.” Id. We must make both of these determinations with due
consideration of “the nature and circumstances of the offense, the
sentencing court's observations of the defendant, the findings that formed
the basis of the sentence, and the sentencing guidelines[,]” and we do so
with particular concern for whether Appellant received an individualized
sentence. Id.-8-
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In its opinion, the trial court indicated that, during Appellant’s guilty
plea hearing, it had reviewed each charge and the applicable maximum
penalty for each offense. TCO, at 3-4 (quoting from N.T. Guilty Plea
Hearing, 2/17/15, at 3-7). The court also indicated that, during Appellant’s
sentencing hearing, it accurately noted the relevant OGS’s for sexual assault
and indecent assault, as well as Appellant’s PRS. Id. at 4 (quoting from N.T.
Sentencing Hearing, 6/24/15, at 2). The trial court then stated:
At the sentencing hearing this [c]ourt also noted that it had
read and considered a [PSI] report and several letters written on
behalf of [Appellant], including letters from his brother and
sister. "Where pre-sentence reports exist, [the appellate court]
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. Macias, 968 A.2d 773, 77 (Pa.
Super. 2009) [(quoting Commonwealth v. Devers, 546 A.2d
12, 18 (Pa. 1988)).] This [c]ourt then placed its reasons for
imposing sentence on the record:
THE COURT: Well, there are very few cases that I think
about as much as I think about the sentencing in this case.
I think about the fact that you did enter a plea of guilty.
That you have sought help. But not until you were actually
arrested.
I think in spite of the letters that your brother and sister
sent me, that the impact on them must be absolutely
horrendous. I can't imagine a child of that age, children of
that age going through being attacked by somebody that
they loved and trusted. I am also concerned because
there is an issue of penetration with your sister.
Sometimes you say yes. Sometimes you say no. So, I'm
not sure how forthcoming you really are.
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As I said, Dr. Pass'[4] report is very positive and leads me
to think that he believes that you should be on probation.
However, probation is not only about rehabilitation.
Sometimes, probation is about what happened to the
victims and how to safely protect the victims. Your
brother and sister are still youthful. I am especially
concerned about [the] allegations in 2004 where you were
alleged to have had sexual contact with both your brother
and sister, as well as a young six-year old or four-year old
cousin.
I would have thought that if your family and you did
nothing at that time, that you're not going to do anything
now. So this isn't a case where you get two bites of the
apple. Mo[s]t certainly in my courtroom and not when
young children are involved.
([N.T. Sentencing Hearing, 6/24/15, at] 5-6).
As the record reflects, this [c]ourt appropriately read and
considered the [PSI] report, considered the factors and severity
of the present offense, evaluated [Appellant]'s potential for
rehabilitation and imposed a sentence which took all of these
factors into consideration. Moreover, the record reflects great
deliberation and consideration in the formulation of the
sentence. [Appellant]'s unhappiness with the length of his
sentence does not mean it is excessive or is otherwise
inappropriate. Given the facts of this case, the sentence
imposed was appropriate, not excessive and well within this
Court's discretion. This claim must fail.
Accordingly, for the above reasons of fact and law, the
judgment of sentence entered on June 24, 2015 must be
affirmed.
TCO at 5-6.
Appellant’s claim is multifaceted. The first sub-part concerns his
assertion that the trial court relied on impermissible factors, namely, facts
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4
As discussed further, infra, Dr. Allan Pass treated Appellant during the
course of the proceedings below in a state-certified sexual offender program.
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outside or otherwise not supported by the record, in crafting Appellant’s
sentences for sexual assault and indecent assault. Specifically, Appellant
claims the trial court relied on the ostensibly unsubstantiated claim that
Appellant had prior sexual contact with the victims, as well as sexual contact
with another minor, several years prior to the events that led to Appellant’s
guilty plea in this case.
Indeed, the trial court indicated that it was “especially concerned
about [the] allegations in 2004” of prior sexual misconduct. TCO at 5.
However, the record does not substantiate this claim. The PSI report,
crafted by the Adult Probation Office of the Court of Common Pleas of
Allegheny County (hereinafter “APO”), indicates that Appellant had no prior
adjudications of delinquency.5 Appellant’s PSI Report, 6/2/15, at 4. The PSI
report makes no mention of any prior allegations of sexual misconduct, nor
does it note any prior allegations of criminal misconduct, much less any
convictions or adjudications of juvenile delinquency.
The primary impetus for the allegations appears to come from two
sources. First, the Commonwealth briefly stated during Appellant’s
sentencing hearing: “[T]here were previous allegations of inappropriate
sexual contact with these children in 2004. Those were unable to be
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5
Appellant was born in 1995. Therefore, any allegations arising in 2004
must have been when Appellant was a 9-year-old, and when the victims,
born in 2004, were infants.
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prosecuted at that time. There was also an allegation [regarding Appellant]
and a young cousin.” N.T. Sentencing Hearing, 6/24/15, at 4. No evidence
was offered to support the Commonwealth’s assertion. The Commonwealth
did not even cite a source for the allegations.
The only information we find in the record tending to support the prior
allegations of sexual misconduct comes from the psychological
assessment/report of Appellant provided by Dr. Allan Pass. In that report,
Dr. Pass stated: “A review of available records indicates that [Appellant] has
one prior juvenile conviction occurring in 2009 at the age of 13 involving
indecent contact (genital fondling) with his male cousin … who was age 8.”
Final Treatment Status Summary Report, 5/16/15, at 2. Dr. Pass did not
provide a citation to, or otherwise identify, the “official records” from which
he drew this conclusion. Indeed, this Court finds it strange that Dr. Pass
was privy to an “official report” that apparently was not available to the APO
or the prosecutor in this case, as both the APO and the prosecutor told the
trial court that Appellant had no prior adult or juvenile convictions.
Moreover, the date provided by Dr. Pass does not correspond to the date of
prior allegations cited by both the trial court and the Commonwealth, and
the age of the alleged victim listed by Dr. Pass does not correspond with the
age of the victim referenced by the court at sentencing (a “six-year old or
four-year old cousin”). See N.T. Sentencing Hearing, 6/24/15, at 5.
Dr. Pass also referenced an Office of Children, Youth and Families
(hereinafter, “CYF”) report from 2009, which indicated “reports of sexually
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improper contact with” the same victims at issue in the instant case. Id.Dr. Pass went on to note that “CYF closed their interest in this case as of
May 18, 2009, indicating that ‘there were no further circumstances that
warrant further investigation or ongoing services from our agency.’” Id. As
far as we know, CYF could have closed interest after deciding that the
allegations were unfounded, rescinded, or simply due to a lack of evidence.
Depending on the circumstances of each case, prior allegations of
criminal conduct may or not be considered for sentencing purposes. “A
sentence is invalid if the record discloses that the sentencing court may have
relied in whole or in part upon an impermissible consideration. This is so
because the court violates the defendant's right to due process if, in deciding
upon the sentence, it considers unreliable information[.]” Commonwealth
v. Karash, 452 A.2d 528, 528 (Pa. Super. 1982) (citations omitted).
However, “it is not improper for a court to consider a defendant's prior
arrests which did not result in conviction, as long as the court recognizes the
defendant has not been convicted of the charges.” Commonwealth v.
Fries, 523 A.2d 1134, 1136 (Pa. Super. 1987).
Between these extremes lies a large grey area covering prior
allegations of criminal conduct which did not result in an arrest or formal
criminal charges. In Commonwealth v. P.L.S., 894 A.2d 120 (Pa. Super.
2006), this Court acknowledged that “prior uncharged criminal conduct can
be considered for sentencing purposes under certain limited circumstances.”
Id. at 128 (emphasis added). For instance, in Commonwealth v. Vernille,
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418 A.2d 713 (Pa. Super. 1980), the sentencing court had relied on
allegations of uncharged criminal conduct in crafting the defendant’s
sentence. However, information regarding the uncharged conduct “was
contained in the presentence investigation report and was also developed at
trial, during which time [Vernille] had ample opportunity to respond to the
allegations. [And, ultimately, Vernille] admitted most of these facts.” Id. at
719 (emphasis added). The Vernille Court concluded that “[s]ince the
information was properly before the judge and was indicative of [the
defendant]'s character, the trial court did not err in considering it.” Id.By contrast, in Commonwealth v. Chase, 530 A.2d 458 (Pa. Super.
1987), this Court reviewed and rejected a sentence based, in part, on the
trial/sentencing court’s belief that the defendant had made a threatening
phone call to the jury’s foreperson after the verdict. Although it was
plausible that the call had been made by someone acting on the defendant’s
behalf, there was scant evidence of his culpability for the call, and no formal
charge or arrest resulted from it. Relying on Commonwealth v. Sypin,
491 A.2d 1371 (Pa. Super. 1985), we held that the sentence “must be
vacated[,]” Chase, 530 A.2d at 462, because we were “persuaded from our
reading of the trial court's remarks prior to sentencing that the court may
have considered the phone call in determining the sentence.” Id. at 461
(emphasis added).
In Sypin, we vacated a sentence imposed on a defendant convicted of
committing sexual offenses against a nine-year-old boy, where the
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sentencing judge had opined at the sentencing hearing as follows: “As you
know, there are thousands of kids, and I mean it's thousands of kids that
disappear every year. … Youngsters that no one ever sees or hears from
again. Sometimes they're found dead; sometimes they're never found. …
And their problems result from men like you….” Id. at 1372. We vacated
Sypin’s sentence because he had not been charged or arrested “in
connection with the disappearance or death of any child.” Id.6
In Commonwealth v. Cruz, 402 A.2d 536 (Pa. Super. 1979), we
recognized that “[a]n [u]nsubstantiated statement that a defendant is a
major drug dealer would be an inappropriate factor in a judge's imposition of
sentence.” Id. at 538.7 Likewise, in Commonwealth v. Schwartz, 418
A.2d 637 (Pa. Super. 1980), we vacated a sentence based, in whole or in
part, on ex parte information received by a sentencing judge from
prosecuting officers regarding their belief that the defendant was heavily
involved in drug trafficking.
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6
Not only did we vacate Sypin’s sentence on that basis, we also ordered
that the resentencing proceeding be “conducted by another trial judge[,]”
because “[t]he statements made by the judge who imposed the sentence
under review are such as to raise a reasonable question regarding the
judge's impartiality.” Id. at 1374.
7
Ultimately, we found that Cruz had waived his claim by failing to preserve
it in the trial court. Nevertheless, numerous cases have subsequently cited
this language favorably as having accurately defined the bounds of
permissible sentencing considerations. See e.g., P.L.S., 894 A.2d at 131;
Chase, 530 A.2d at 462; Sypin, 491 A.2d at 1372; Karash, 452 A.2d at
528; Commonwealth v. Schwartz, 406 A.2d 573, 574 (Pa. Super. 1979).
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In light of the applicable case law and the record in this case, we hold
that the sentencing court improperly considered the prior allegations of
Appellant’s sexual misconduct in crafting its sentence. First, there is
absolutely no reliable evidence that Appellant was adjudicated delinquent or
convicted of any prior offenses before he was sentenced for the crimes in
this case. The source in Dr. Pass’s report for such information was not
divulged, and it directly contradicted the statements of the Commonwealth,
and the information contained in the PSI report produced by the APO.
Second, there is also no credible evidence in the record that Appellant was
ever charged with an offense related to the prior allegations. Again, the PSI
report did not note any prior charges, or anything related to those prior
allegations at all. The prosecutor’s statement at the sentencing hearing did
not even indicate that charges had been filed and dropped; instead, the
prosecutor referred only to “allegations” which were “unable to be
prosecuted.” N.T. Sentencing Hearing, 6/24/15, at 4.8
Thus, this issue falls squarely within the category of prior allegations of
criminal conduct which did not result in an arrest or formal criminal charges.
In such circumstances, these prior allegations may only be considered for
sentencing purposes “under certain limited circumstances.” P.L.S., 894
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8
An inability to prosecute stems from many causes. It is certainly possible
that the allegations were true, while evidentiary proof was lacking. It is also
possible that the allegations were untrue, which would also lead to an
inability to prosecute.
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A.2d at 128. Such circumstances were discussed in Vernille, but almost no
analogy can be drawn to the circumstances in Vernille which permitted the
inclusion of uncharged prior allegations of criminal misconduct at issue in
that case. Here, the alleged criminal conduct was not contained in the PSI
report, the allegations were not developed in the factual record during a trial
(as there was no trial in this case), and there is no evidence of record that
Appellant ever admitted, in whole or in part, to the allegations at issue. This
includes Dr. Pass’s report, which made no mention of whether Appellant ever
admitted to the prior allegations during the course of his treatment.
Accordingly, we find the matter at hand more akin to Cruz – as the
prior allegations in this case derive from unsubstantiated statements in the
record concerning unrelated, uncharged criminal activity, and regarding
which virtually no details were discussed by the court, the prosecutor, or Dr.
Pass, nor do the details of the alleged crimes otherwise appear anywhere
else in the record. The prior allegations are, on their face, multi-layered
hearsay statements. Dr. Pass, who was clearly incorrect when he stated
that Appellant had been previously adjudicated delinquent, did not even cite
his source for the allegations. Likewise, the prosecutor’s statement did not
indicate the source of allegations, whether the victims had alleged the abuse
(or whether a third-party had made the claim), or whether the prosecutor
had learned of the prior allegations second-hand or through personal
knowledge.
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The Commonwealth argues that these allegations were properly
considered for sentencing purposes under P.L.S., but presents that
argument without acknowledging that the P.L.S. Court only permitted
consideration of prior allegations of criminal conduct “under certain limited
circumstances.” P.L.S., 894 A.2d at 128. As a result, the Commonwealth
does not discuss what the limited circumstances were that justified
consideration of the prior allegations at issue in this case. The
Commonwealth did not explain at the sentencing hearing, or now on appeal,
why the prior allegations of such a serious nature never led to an arrest or
formal charges, or why CYS closed their investigation into those allegations.
Moreover, the Commonwealth does not address why the prior allegations
were not raised in the PSI report, or why the Commonwealth otherwise
failed to develop the record below in a manner beyond the unsubstantiated
statements of the prosecutor at the sentencing. Accordingly, we find wholly
unconvincing the Commonwealth’s argument that the prior allegations were
properly considered by the sentencing court. To permit the prior allegations
of sexual misconduct at issue in this case, based on a record of
unsubstantiated, undetailed, and likely hearsay statements by Dr. Pass and
the prosecutor, would effectively eviscerate the rule that uncharged prior
allegations of criminal conduct should only be considered in limited
circumstances.
Next, Appellant complains that the sentencing court relied on
“misinformation” when it stated at his sentencing hearing that Appellant did
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not seek psychiatric help for his sexual misconduct until after he was
arrested. Appellant’s Brief at 45. The record confirms the nature of the
court’s assertion. As the court began to set forth the reasons for the
sentence imposed, it stated: “I think about the fact that you did enter a plea
of guilty. That you have sought help. But not until you were actually
arrested.” N.T. Sentencing Hearing, 6/24/15, at 4. When the court made
this statement, it did not elaborate on the factual basis that led it to that
conclusion, or provide any citation to the record. The sentencing court also
fails to discuss this matter in its Rule 1925(a) opinion, despite being
prompted to do so by Appellant’s Rule 1925(b) statement. 9 The prosecutor
had not even raised this matter at the sentencing hearing.
Our review of the record indicates that the court’s statement lacked a
foundation in fact, or that it was an unreasonable conclusion from known
facts. The PSI report indicated that the police were made aware of the
sexual misconduct giving rise to Appellant’s convictions in this case on June
19th and June 25th of 2014. Appellant’s PSI Report, 6/2/15, at 3. When
they questioned Appellant, he admitted to the conduct, and was then
charged based on his admissions. Id. There is no indication that Appellant
____________________________________________
9
In his Rule 1925(b) statement, Appellant argued that “the record showed
that [he] proactively admitted his crimes and sought help prior to his arrest,
despite the [t]rial [c]ourt’s contention that [he] only sought help after he
was arrested.” Appellant’s Rule 1925(b) Statement, 1/7/16, at ¶ 14(a)(i)
(unnumbered pages).
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was arrested or charged before he admitted to the sexual misconduct at
issue. The PSI report does not indicate when or how the police were made
aware of Appellant’s crimes. However, Dr. Pass stated in his report that “it
should be noted that these illegal sexual acts were brought to the attention
of law enforcement authorities as a result of [Appellant]’s self[-]report[ing]
to medical authorities while being treated at the Indiana Regional Medical
Center emergency room for depression & suicide ideation.” Final Treatment
Status Summary Report, 5/16/15, at 2. The Commonwealth’s recitation of
the factual basis for Appellant’s guilty plea also contradicts the court’s
statement. See N.T. Guilty Plea Hearing, 2/17/15, at 7 (“Appellant], who is
[the victims’] biological brother, went to Indiana Regional Medical Center for
treatment. At that time he got a psychological evaluation and made
statements to the psychiatrist stating that he had inappropriate sexual
contact with his younger siblings.”).
Our review of the record shows no evidence to the contrary.
Indeed, Dr. Pass’s statement that Appellant self-reported is consistent with
the criminal complaint, which stated that Appellant’s younger brother had
been brought in for questioning on June 25, 2014, not after making claims of
abuse himself, but after a “mandatory reporting source” had reported
Appellant’s sexual misconduct. Criminal Complaint for Case 10399, 7/22/14,
at 2. The Report went on to state that when Appellant was later brought in
for questioning, he told the police he had first admitted to the abuse while
seeking treatment at the Indiana Regional Medical Center. Id.- 20 -
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For these reasons, we agree with Appellant’s contention that the
sentencing court lacked any factual basis, or unreasonably interpreted the
facts of record, when it concluded that Appellant had only “sought help”
after he was arrested. To the contrary, the record indicates that Appellant
“sought help” for his mental health issues, and in doing so self-reported the
abuse he inflicted on his siblings. When that mandatory reporting source
contacted the authorities, Appellant again admitted his crimes to the police,
and did so before he was arrested.
The Commonwealth contends the court’s statement was accurate in
that Appellant did not seek specific help “for his sexual proclivities” until
August of 2014, after his arrest, when he began seeing Dr. Pass.
Commonwealth’s Brief at 17. We are not persuaded by this argument, as it
puts too fine a point on the issue. The clear impression given by the
sentencing court was that Appellant only self-servingly sought mental health
treatment for his sexual dysfunction after he was arrested. This is a clear
misrepresentation of the record. It was Appellant’s voluntary and possibly
unprompted admissions to officials at the Indiana Regional Medical Center
which led the police to investigate his crimes. Appellant then again admitted
his crimes to police at their first meeting, and did so before being arrested or
charged. Whether Appellant sought the treatment of a specific subset of the
psychiatric profession - for a psychiatric diagnosis that had not yet even
been made - is a trivial distinction for the Commonwealth to make, and we
reject it on that basis.
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Next, Appellant complains that the record does not support and, in
fact, contradicts the sentencing court’s assertion that “the impact on
[Appellant’s victims] must be ‘absolutely horrendous.’” Appellant’s Brief at
46. During its statement at the sentencing hearing, the court said: “I think
in spite of the letters that your brother and sister sent me, that the impact
on them must be absolutely horrendous. I can’t imagine a child of that age,
children of that age going through being attack by someone that they loved
and trusted.” N.T. Sentencing Hearing, 6/24/15, at 5. Appellant argues that
the record and specific circumstances of this case simply refute the
sentencing court’s characterization of the lasting effects of Appellant’s crimes
on the victims.
Again, despite being prompted to address this specific concern by
Appellant’s Rule 1925(b) statement, see Appellant’s Rule 1925(b)
Statement, 1/7/16, at ¶ 14(a)(ii) (unnumbered pages), the court made no
attempt to defend or support that statement in its Rule 1925(a) opinion by
citation to evidence contained within the record. Indeed, the court made no
attempt to address the matter at all.
However, in the context of the court’s contemporaneous comments, it
appears that the court was asserting, in part, that Appellant’s relationship to
the victims was a significant aggravating sentencing factor because his
crimes would ostensibly have had a greater negative impact on those
victims. In our review of the record, we ascertain no evidence tending to
support this claim beyond the general nature of the crimes committed,
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including the relationship between Appellant and his victims. In some cases,
this may be enough, without more, to justify the court’s comment. Without
qualification, we agree that terrible crimes were committed, and these
terrible crimes were committed on children by someone entrusted with their
care. These are valid, undisputable concerns that are relevant at
sentencing.
However, it is also a widely accepted reality that child victims of sexual
violence are rarely abused by complete strangers.10 Thus, it can be readily
deduced that at least as often as not, a child victim of sexual abuse is
victimized by someone they loved or trusted, or otherwise by someone
entrusted with their care, even when that person is not a family member,
but instead a family friend, neighbor, or other confidant. In any event, the
impetus of the court’s comment at issue appears to be that the impact on
these victims must be greater because Appellant was a family member. This
is not a wholly illogical conclusion in a vacuum, and may very well be true
more often than not. However, in the context of this case, it appears the
court applied a general rule without regard to evidence that only points to
this case being an exception to that general rule.
____________________________________________
10
The United States Department of Justice reports that only about 10% of
perpetrators of child sexual abuse are strangers to the child, while 30% of
perpetrators of child sexual abuse are family members. See
https://www.nsopw.gov/en-US/Education/FactsStatistics.
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For instance, in the PSI report, there is no mention of the “absolutely
horrendous” effect of Appellant’s crimes on his victims, nor any language,
whatsoever, remotely conveying that sentiment. The only discussion of the
impact on the victims comes from a passage in the PSI report contained
under the heading, “Victim Impact Statement.” Therein, it is stated:
This Investigator spoke with the minor victims' mother, …
who is also the mother of [Appellant]. She reported that both
minor victims "are fine now." [She] notices no lingering effects
due to the sexual assaults. She stated that they are both good
students and have many friends. [She] states that they show no
negative signs due to the abuse. She reported that staff from
Pittsburgh Action Against Rape (PAAR) recommended
treatment/counseling for the minor victims but [she] stated that
neither child would go to counseling. She stated that she is
keeping a close eye on both children for any negative effects.
[She] reported that there is a no-contact order in place and that
[Appellant] has not been in contact with the victims since the
crime. She stated that the children ask about their older brother
and mention how they enjoyed playing video games with him.
Appellant’s PSI Report, 6/2/15, at 4.
The victims each wrote victim impact statements to the court.
Appellant’s younger brother wrote:
My name is []. I like to play baseball[.] I am [Appellant’s] little
brother. I am doing fine and I can’t wait till summer. I forgive
[Appellant] for what he has done. I miss when he would come
over and we all have a good time. I don’t want to see
[Appellant] go to jail. I want him to be able to see that doctor
so he can come home and we can all have a good time. I miss
when we all can’t see each other and me and [Appellant] play
games. Also I would like us all to see one of my baseball games.
Sentencing Memorandum, 6/9/15, at 22-23 (unnumbered pages).
Appellant’s younger sister wrote:
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My name is []. I love playing games and drawing. I’m
[Appellant’s] little sister. I can’t wait until swimming this
summer. I’m fine and I forgive him. I miss when he came over
or when we went to the campground and told jokes. I don’t
want [Appellant] to go to jail. I want [Appellant] to keep seeing
his doctor. I would want him to come and swim with me and my
family. Please don’t break my little heart and send him to jail[.]
I don’t want to see him in jail EVER. Please have a change of
heart and not send him to jail[.]
Id. at 24.
Numerous other letters from Appellant’s immediate and extended
family (each indirect victims of Appellant’s conduct in their own way) were
written on his behalf, all with a common theme. They wanted Appellant to
receive community-based sex-offender treatment, and they all committed to
support his treatment efforts. Id. at 16-21. Another common theme was
the view that a lengthy term of incarceration would be highly damaging to
the family. There is no other evidence in the record concerning the impact
of Appellant’s crimes on his victims. Accordingly, we agree with Appellant
that the sentencing court’s conclusion that effect of his crimes on the victims
in this case must be absolutely horrendous is lacking support in the specific
and unique circumstances of this case.
Appellant next complains that the trial court failed to consider his
rehabilitative needs. In this regard, Appellant points to Dr. Pass’s report,
which generally indicates that, at the time of sentencing, Appellant had been
fully cooperative and compliant in his state-certified sex offender treatment
administered by Dr. Pass. Dr. Pass assessed that Appellant was a low to
moderate risk for sexual offense relapse. Final Treatment Status Summary
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Report, 5/16/15, at 4. In summarizing his finding, Dr. Pass stated that
Appellant “has consistently impressed as one who is highly motivated to
continue in treatment….” Id.
Our review of the record, however, does not support Appellant’s
conclusion that the trial court failed to consider his rehabilitative needs.
Although we view Appellant’s sentence to be inconsistent with the evidence
of record concerning Appellant’s rehabilitative needs, we are simply not
convinced that the sentencing court failed to consider them. It appears that
the court, instead, considered Appellant’s rehabilitative needs but simply
afforded far more weight to other statutory sentencing factors, including
“the protection of the public, [and] the gravity of the offense as it relates to
the impact on the life of the victim and on the community[.]” 42 Pa.C.S. §
9721(b). This is reflected in the sentencing court’s comments at sentencing,
when it acknowledged that “Dr. Pass’ report is very positive and leads me to
think that he believes that you should be on probation.” N.T. Sentencing
Hearing, 6/24/15, at 5. Earlier during that hearing, the court had
commented that Appellant’s sentencing memorandum was “very extensive …
including a positive report from Dr. Pass, who[m] I deeply respect.” Id. at
3. In light of these comments, we simply cannot ascertain an abuse of
discretion in the court’s consideration of Appellant’s rehabilitative needs. The
court expressed deep respect for Dr. Pass, acknowledged Dr. Pass’ implicit
conclusion that Appellant’s rehabilitative needs would be better served
through treatment rather than incarceration, but nevertheless relied
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primarily on other factors in crafting Appellant’s sentence. Thus, we view
this aspect of Appellant’s claims to be a challenge asserting the improper
weighing of legitimate sentencing factors. Our standard of review does not
permit this Court to subjectively reweigh such factors.
Appellant also argues that the sentencing court failed to properly
consider “extensive mitigating evidence.” Appellant’s Brief at 54. With
regard to this claim, as well, we conclude that Appellant is asking this Court
to reweigh the various sentencing considerations before the trial court, at
least to the extent that Appellant is not relying on the matters discussed
above regarding the court’s consideration of facts not supported or otherwise
contradicted by the record. Accordingly, we find this aspect of Appellant’s
claim to be lacking merit.
Finally, we now return to the question whether the court’s errors,
discussed above, resulted in an “unreasonable” or “clearly unreasonable”
sentence. In doing so, we must consider whether the sentences were
individualized to Appellant with regard to the nature and circumstances of
the offense, the sentencing court's observations of Appellant, the findings
that formed the basis of the sentence, and the sentencing guidelines. See
42 Pa.C.S. § 9781(d). Thus, we must determine whether Appellant’s
sentence for indecent assault was unreasonable, and whether his sentence
for sexual assault was clearly unreasonable.
In his brief, Appellant compares this matter to our decision in
Commonwealth v. Coulverson, 34 A.3d 135 (Pa. Super. 2011). In that
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case, the defendant pled guilty to having forcibly raped and robbed a victim
whom he found waiting alone for a bus on a city street; in the following
days, he also burglarized, robbed, and assaulted four additional victims. Id.
at 139-141. Ultimately, after entering a guilty plea, the defendant was
sentenced to 18-90 years’ incarceration, which included several statutory
maximum sentences imposed to run consecutively with respect to the
maximum term imposed, but where the minimum terms all fell within the
standard range of the sentencing guidelines. The defendant unsuccessfully
challenged his sentence in a post-sentence motion, arguing that the
sentence imposed “was excessive, not individualized, and not adequately
explained on the record.” Id. at 141.
On appeal, we noted that the sentencing court had made few
comments at the sentencing hearing, other than to say:
Mr. Coulverson, I've listened to everything that everyone had to
say, including you, your lawyer, your family, the victim, the
victim's family, the victim's friends. I reviewed the presentence
investigation report, which I have considered along with the
other information.
The destruction you've caused to [the victim], her family, her
friends, your family, your friends, the future generations of all
those people will last forever.
Id. at 144 (citation omitted). Ultimately, this Court determined the trial
court had abused its sentencing discretion by relying almost entirely on the
victims’ impact statements in crafting the defendant’s sentence.
There is much to distinguish between this case and Coulverson. The
gravity and number of crimes at issue in Coulverson are not comparable to
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those of the instant one, and it is clear that the victim impact statements in
that case provided a far different picture of the effect of Coulverson’s crimes
on his victims than the victims’ impact statements in this case. Moreover,
the sentence imposed in Coulverson facially appeared to conform to the
standard guideline sentencing range suggested, but the court had imposed
maximum sentences more in line with the statutory maximums which would
have fallen in or outside the aggravated sentencing range. Clearly, the facts
of Coulverson cannot even begin to dictate a specific result in this case.
However, the principles expressed by this Court in Coulverson are no
less applicable here. Therein, after acknowledging the weight of the victims’
powerful and emotional impact statements, we stated:
Nevertheless, the deliberation of a court of law demands
evaluation of multiple considerations that private grief does not.
Thus, while a crime's impact on the victim continues to be a
significant element of a sentencing judge's consideration, the
court may not ignore the continuum of circumstances underlying
a defendant's criminal conduct, society's need for rehabilitation,
or the statutory factors enunciated in our Sentencing Code on
the way to imposing a maximum sentence. … Although the court
acknowledged the PSI report, it did so only as a perfunctory
exercise and focused its consideration entirely on the severity of
Coulverson's offenses and the victims' impact statements. Its
discussion evinced no consideration whatsoever of the
dysfunction that marked Coulverson's own life, his cooperation
and remorse, his attempts at reclaiming a productive role in
society, or the possibility that, with appropriate mental health
treatment, he might succeed at rehabilitation after serving a
substantial term of eighteen years' incarceration. The resulting
sentence cannot be described as “individualized” in any
meaningful way. Consequently, notwithstanding the
commencement of Coulverson's multiple sentences in the
standard guidelines range, we find the maximum sentence
imposed “clearly unreasonable.”
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Id. at 149–50.
Here, similar to what occurred in Coulverson, the sentencing court
premised a decision in significant part on the impact of Appellant’s crimes on
the victims. However, in Coulverson, that consideration was actually
reflected in, and supported by, the victims’ impact statements. Here, the
court’s conclusion that the impact on the victims must be ‘absolutely
horrendous’ did not just lack a foundation in the record, but the victims’
impact statements tended to contradict the court’s statement. The victims
in this case expressed that they had already forgiven Appellant, and
essentially pleaded with the sentencing court for leniency for their older
brother. Thus, there is even less cause in this case than there was in
Coulverson to accept the court’s judgment with regard to the impact on the
victims in this case. The sentencing court in Coulverson had relied too
much on the victims’ impacts statements, but in no way understated or
misconstrued them. Here, the sentencing court acknowledged the victims’
impact statements in a most superficial fashion, but then asserted
unsupported conclusions that contradicted the record with regard to the
crimes’ lasting impact on those victims.
Another factor we must consider concerns the sentencing court’s
observations of Appellant. Here, Dr. Pass’ report, the PSI report, and the
procedural development of this case, all contradict the sentencing court’s
statement that Appellant did not seek treatment until after he was arrested.
Indeed, as discussed above, nothing in the record tends to support the
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court’s comment. Appellant’s crimes in this case appear to have been
exposed only through his admissions to mandatory reporters. Appellant
then admitted his crimes when questioned by the police, and he did so
before he was arrested or charged in this case. He then later admitted to
his conduct through his guilty plea. The notion that Appellant only sought
help after facing severe legal consequences is simply belied by the record.
The court also relied on unsubstantiated claims about prior crimes for
which Appellant was never arrested, charged, or convicted. As discussed
above, no exceptional circumstances justified the court’s reliance on these
allegations and, even worse, the allegations were not supported in the
record, either through Appellant’s admission to such conduct, renewed
allegations by the victims, or any other independent source of evidence
beyond what appears to be hearsay on the part of the prosecutor and Dr.
Pass.
Most concerning, these impermissible factors also appear to be the
primary basis for the sentencing court’s decision to depart upward from the
recommended sentencing guidelines. A clear pattern emerges when viewing
the sentencing court’s statement at Appellant’s sentencing hearing. The
court would note some mitigating circumstance, and then effectively dismiss
it by stating one of the impermissible factors on which it relied. First, the
court acknowledged that Appellant sought help for sexual dysfunction and
pled guilty, both of which tend to demonstrate his amenability to
rehabilitation. Then the court qualified those sentencing considerations by
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falsely asserting that Appellant had only self-servingly sought treatment
after he was arrested. The court later acknowledged, but did not discuss,
the victims’ impact statements. However, the court then disregarded the
content of those statements, as well as the observations made by the
victims’ mother in the PSI report, by stating that the impact on the children
must be absolutely horrendous. Such a statement might be tolerated in the
absence of any evidence other than the facts underlying Appellant’s
conviction, however, the only evidence which directly addressed the lasting
effects on the victims plainly was at odds with the court’s conclusion. This
strongly suggests a lack of individualization in Appellant’s sentence, as the
court appeared to be generalizing about victims of sexual violence, rather
than addressing the circumstances which were unique to this case. Finally,
the court acknowledged the ‘very positive’ report from Dr. Pass, for whom
the sentencing judge had earlier expressed great respect. That report
strongly endorsed Appellant’s rehabilitative potential. Then the court
essentially rejected the recommendation on the basis of uncharged prior
allegations of sexual misconduct that allegedly occurred when Appellant was
a young teenager. Notably, although we find that the court impermissibly
considered these allegations at sentencing, Dr. Pass had even assumed that
they were true, yet he still crafted a “very positive” report.
In its opinion, the sentencing court asserts its reliance on presumption
established in Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988). In
Devers, our Supreme Court held: “Where pre-sentence reports exist, we
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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.” Id. at 18 (emphasis
added).11 However, the presence of a PSI report does not render a
sentence unreviewable merely because the sentencing court read it. In
Commonwealth v. Moore, 617 A.2d 8 (Pa. Super. 1992), we overturned
an unreasonably lenient sentence despite the fact that the sentencing court
in Moore “had the pre-sentence report before it and was cognizant of its
contents,” because it was “equally obvious that [the court] failed to properly
analyze [relevant statutory sentencing factors] and did not correctly consider
and weigh all relevant factors….” Id. at 13 (quoting Commonwealth v.
Masip, 567 A.2d 331, 336 (Pa. Super. 1989)). The PSI report in Moore
established that
the defendant's repeated, continuous motor vehicle and
substance abuse violations so adversely impact the protection of
the public and the rehabilitative needs of the defendant that they
could not have been properly weighed, together with all the
other facts and circumstances of this case, prior to the trial
court's imposition of defendant's mitigated sentence.
Id.____________________________________________
11
The sentencing court relied on identical language taken from
Commonwealth v. Macias, 968 A.2d 773 (Pa. Super. 2009), which simply
restated the Devers presumption without direct attribution to Devers.
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Instantly, the disconnect between the record and the sentence
imposed by the sentencing court is at least as significant as it was in Moore,
and demonstrates that the sentencing court here did not properly consider
the various statutory sentencing factors, as the court had repeatedly relied
on impermissible factors such as unreliable facts and misinformation. An
objective view of the unique circumstances of this case, taken from the PSI
report and other parts of the record, and untainted by these impermissible
factors, told a wildly different story than that crafted by the sentencing
court. Appellant is a young man, barely out of his teenage years, with no
prior record of any sort. His crimes, committed against his younger siblings,
were, without qualification, serious offenses and serious breaches of trust,
both with respect to the victims, and with regard to his parents, who
entrusted him with their care. However, he admitted to his crimes while
seeking mental health treatment. He was forthcoming with the authorities
when they were alerted to his admissions. Prior to pleading guilty, and
through the sentencing proceeding, Appellant participated in and fully
cooperated with a state-certified sexual offender program, and received a
patently positive assessment for his efforts there from Dr. Pass. Appellant
has a supportive immediate and extended family who, while acknowledging
the gravity of his crimes, nonetheless have forgiven him, and are now
committed to assisting him in continuing his treatment. The victims
themselves, although still young children, pleaded with the sentencing court
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for leniency. Ultimately, but perhaps not surprisingly, the prosecutor did not
even recommend a particular sentence to the court.
These are not common features among the countless sexual offense
cases this Court routinely reviews. In a case that objectively called for a
mitigated or, at least, a standard range sentence, the sentencing court here
chose an aggravated range sentence and a sentence above the guidelines.
The most compelling reasons offered by the sentencing court for this upward
deviation were not supported by the record and, often, directly contradicted
it.12 In these circumstances, we are compelled to conclude that Appellant’s
____________________________________________
12
We note our awareness of a possible emerging pattern in this particular
sentencing court of routinely sentencing sex offenders in the aggravated
sentencing range and/or outside the guidelines. See Commonwealth v.
Bernal, 2016 WL 7362624 at *7 (Pa. Super. 2016) (unpublished
memorandum). The sentence(s) in this case tend to match such a pattern,
given the extreme dissonance between the circumstances of this case and
the sentence(s) imposed. This invites the obvious question: if the
circumstances at issue here do not warrant a standard or mitigated range
sentence, when, if ever, will such a sentence be warranted?
There will always be cases where circumstances call for, if not
practically compel, sentences which exceed the standard guideline
recommendations. Our standard of review affords the trial court a wide
degree of discretion in determining when such sentences are appropriate.
However, we expect that sentencing courts understand that a standard
range sentence is the norm and, consequently, that sentences which exceed
(or fall below) the standard recommendation should be relatively infrequent
by comparison. The appearance of bias, and doubt regarding a court’s
commitment to individualized sentencing, both rationally emerge when such
a pattern of routine deviation from sentencing norms is demonstrated by
adequate evidence.
(Footnote Continued Next Page)
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sentences for sexual assault and indecent assault were both clearly
unreasonable. Accordingly we vacate Appellant’s judgment of sentence and
remand for resentencing.
Judgment of sentenced vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/9/2017
_______________________
(Footnote Continued)
Instantly, Appellant has not alleged bias specifically, but he has
challenged the court’s commitment to individualized sentencing, a
commitment that cannot be maintained in the presence of a bias toward a
specific class of offenders. Unfortunately, this Court is restrained, under
Commonwealth v. Whitmore, 912 A.2d 827 (Pa. 2006), from ordering,
sua sponte, the recusal of a trial court or sentencing judge. However, we
are not restrained from reminding Appellant that he is permitted to file a
recusal motion upon remand, in which context he may seek to develop a
record of a pattern of bias, if one can be demonstrated by competent
evidence.
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