Com. v. P.B.P ( 2020 )


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  • J-A04013-20
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    Appellee               :
    :
    v.                           :
    :
    P.B.P.,                                    :
    :
    Appellant              :   No. 3026 EDA 2018
    Appeal from the Judgment of Sentence Entered September 21, 2018
    in the Court of Common Pleas of Philadelphia County
    Criminal Division at No(s): No.: CP-51-CR-0007568-2016
    BEFORE:     MCCAFFERY, J., STRASSBURGER, J.* and COLINS, J.*
    MEMORANDUM BY STRASSBURGER, J.:                         FILED JUNE 22, 2020
    P.B.P. (Appellant) appeals from the September 21, 2018 aggregate
    judgment of sentence of 15 to 30 years of incarceration following his
    convictions for rape of a child, involuntary deviate sexual intercourse (IDSI),
    endangering the welfare of a child (EWOC), corruption of a minor, and
    unlawful contact with a minor, for offenses committed against his daughter,
    P.H.-N. Upon review, we affirm Appellant’s convictions, affirm in part and
    vacate in part his judgment of sentence, and remand for resentencing.
    The trial court set forth the following recitation of facts in its Pa.R.A.P.
    1925(a) opinion.
    When [P.H.-N.] was 10-11 years[]old, she lived with
    Appellant, her father, for between three and five months,
    starting in about December of 2014. Prior to that time [P.H.-N.]
    had not really had a relationship with Appellant. The house
    where they lived was uninhabitable on the first floor. The
    second floor consisted of three bedrooms. The rear one was, for
    *Retired Senior Judge assigned to the Superior Court.
    J-A04013-20
    a period, occupied by a couple. The middle one was [P.H.-N.’s]
    room, but she didn’t sleep there because there was no bed in the
    room. Appellant and [P.H.-N.] slept in the third bedroom, which
    was in the front of the house. There was no operable kitchen.
    Appellant and [P.H.-N.] shared a bed.
    At some point after they had been living together for two
    or three months, Appellant asked [P.H.-N.]: “Do you want me to
    show you what I did to your mother?” Thinking he meant a hug,
    [P.H.-N.] said yes. Appellant then removed [Victim’s] clothes
    and touched her chest, buttocks and crotch with his penis. He
    put his penis in her butt. Appellant engaged in this conduct
    every night. Appellant also put his penis in [P.H.-N.’s] mouth on
    more than one occasion.
    When [P.H.-N.] would tell Appellant that she did not want
    to engage in this behavior, Appellant would get mad and tell her
    that she did[ no]t love him. When [P.H.-N.] would tell Appellant
    “no[,]” he would tell her that he would not feed her. Appellant
    carried through on this threat on some occasions when [P.H.-N.]
    told him no, and did not feed her. [P.H.-N.] did not tell anyone
    what her father was doing to her because she was scared and
    Appellant told her not to tell anyone.
    In approximately April of 2015, [P.H.-N.] went to live with
    [G.A.], at the request of Appellant. [In the summer of 2015,
    P.H.-N. asked G.A. about inappropriate touching, but did not
    disclose the aforementioned sexual acts at that time.]
    In October of 2015, [P.H.-N. was taken to Children’s
    Hospital for vaginal pain, discharge, and bleeding. While at the
    hospital, P.H.-N. disclosed the aforementioned sexual acts.
    Consequently, she underwent an examination and her complaint
    was referred] to the Department of Human Services [(DHS).
    P.H.-N. also underwent an additional exam at the hospital’s care
    clinic. The examination revealed no injuries.] The lack of such
    evidence is not conclusive as to whether or not a sexual assault
    involving penetration occurred.
    [P.H.-N.] described Appellant’s conduct to the social
    worker [at the hospital]. She also gave a forensic interview at
    the Philadelphia Children’s Alliance [(PCA)], which interview was
    [videotaped and] witnessed remotely by the social worker and a
    Philadelphia Police Special Victims Unit [(SVU)] Detective.
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    J-A04013-20
    Trial Court Opinion, 2/1/2019, at 2-3 (record citations and some quotation
    marks omitted).
    Based upon the foregoing, Appellant was arrested and charged with,
    inter alia, the aforementioned crimes.           On April 30, 2018, Appellant
    proceeded to a jury trial solely on the aforementioned charges. At trial, the
    Commonwealth presented testimony from P.H.-N.; G.A.; SVU Detective
    William Brophy; Melinda Brown, DHS social worker; Denise Wilson, manager
    of forensic services at PCA;1 and Dr. Natalie Stavas, an expert in child abuse
    and pediatrics.      The jury also viewed P.H.-N.’s videotaped PCA forensic
    interview. At the conclusion of the trial, the jury found Appellant guilty as
    indicated hereinabove.
    Sentencing was deferred for a pre-sentence investigation (PSI) and
    mental health evaluation. On September 21, 2018, the trial court sentenced
    Appellant to the following terms of incarceration: 10 to 20 years for rape of
    a child, 10 to 20 years for IDSI, 5 to 10 years for EWOC, 5 to 10 years for
    corruption of minors, and 5 to 10 years for unlawful contact with minors.
    The 10-to-20-year terms were set to run concurrently to each other and
    consecutively to the 5-to-10-year terms, which were set to run concurrently
    ____________________________________________
    1 Wilson testified from PCA’s business records at Appellant’s jury trial
    regarding P.H.-N.’s forensic interview at PCA because the individual who
    conducted the interview was on maternity leave. N.T., 5/1/2018, at 105.
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    to each other. Thus, Appellant received a total aggregate sentence of 15 to
    30 years of incarceration.
    On September 27, 2018, Appellant timely filed post-sentence motions
    challenging the weight of the evidence and the discretionary aspects of his
    sentence. The trial court denied the motions on October 10, 2018.
    This timely-filed appeal followed.2 On appeal, Appellant challenges the
    sufficiency and weight of the evidence, the denial of his motion in limine to
    exclude    evidence     about    Appellant’s     ownership   of weapons,   and   the
    discretionary aspects and legality of his sentence.3 Appellant’s Brief at 14-
    18.
    We begin with Appellant’s sufficiency and weight claims, as they are
    interrelated.      On appeal, Appellant purports to raise distinct claims
    challenging the sufficiency and weight of the evidence. See Appellant’s Brief
    at 14-15, 44-53 (claiming evidence was insufficient to support verdict);
    id. at 15-16,
    53-56 (claiming the verdict was against the weight of the
    evidence).      However, upon review, it is evident that Appellant is only
    challenging the weight of the evidence.
    ____________________________________________
    2 Both Appellant and the trial court have complied with the mandates of
    Pa.R.A.P. 1925.
    3Although Appellant challenges the legality of his sentence for the first time
    on appeal, it is not waived. See Commonwealth v. Infante, 
    63 A.3d 358
    ,
    363 (Pa. Super. 2013) (“As long as the reviewing court has jurisdiction, a
    challenge to the legality of the sentence is non-waivable[].”) (citation
    omitted).
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    Appellant’s sufficiency claim does not challenge specific elements of his
    convictions.4    Rather, Appellant assails P.H.-N.’s testimony as inconsistent,
    speculative, conflicting, and uncorroborated. Based upon Commonwealth
    v. Farquharson, 
    354 A.2d 545
    (Pa. 1976), Appellant asserts that P.H.-N.’s
    testimony could not provide sufficient evidence to sustain his convictions,
    rendering the guilty verdicts based thereon pure conjecture.         Appellant’s
    Brief at 47-52.
    Our Supreme Court has held that a challenge to a verdict based upon
    Farquharson challenges the weight of the evidence, not the sufficiency.
    See, e.g., Commonwealth v. Sanchez, 
    36 A.3d 24
    , 37 (Pa. 2011) (citing
    Commonwealth v. DeJesus, 
    860 A.2d 102
    (Pa. 2004)) (noting that a
    “challenge to verdict pursuant to Farquharson is to weight, not sufficiency,
    of the evidence”).       Therefore, as Appellant’s sufficiency claim is really a
    ____________________________________________
    4 Neither Appellant’s Pa.R.A.P. 1925(b) statement, nor his appellate brief,
    states which elements of which crimes the Commonwealth failed to prove
    beyond a reasonable doubt.
    We have repeatedly held that [i]n order to preserve a challenge
    to the sufficiency of the evidence on appeal, an appellant’s
    [Rule] 1925(b) statement must state with specificity the element
    or elements upon which the appellant alleges that the evidence
    was insufficient. … Therefore, when an appellant’s 1925(b)
    statement fails to specify the element or elements upon which
    the evidence was insufficient[,] ... the sufficiency issue is waived
    on appeal.
    Commonwealth v. Ellison, 
    213 A.3d 312
    , 320-21 (Pa. Super. 2019)
    (citations and quotation marks omitted). Accordingly, insofar as Appellant
    attempts to raise a distinct sufficiency claim, it is waived.
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    J-A04013-20
    challenge to the weight of the evidence, we do not address the sufficiency of
    the evidence, and instead turn to his weight challenge.
    “A verdict is against the weight of the evidence ‘where certain facts are
    so clearly of greater weight that to ignore them or to give them equal weight
    with all the facts is to deny justice.’”   Commonwealth v. Williams, 
    176 A.3d 298
    , 312 (Pa. Super. 2017) (quoting Commonwealth v. Lyons, 
    833 A.2d 245
    , 258 (Pa. Super. 2003)). We examine challenges to the weight of
    the evidence according to the following standard.
    A motion for a new trial based on a claim that the verdict is
    against the weight of the evidence is addressed to the discretion
    of the trial court. A new trial should not be granted because of a
    mere conflict in the testimony or because the judge on the same
    facts would have arrived at a different conclusion. When a trial
    court considers a motion for a new trial based upon a weight of
    the evidence claim, the trial court may award relief only when
    the jury’s verdict is so contrary to the evidence as to shock one’s
    sense of justice and the award of a new trial is imperative so
    that right may be given another opportunity to prevail. The
    inquiry is not the same for an appellate court. Rather, when an
    appellate court reviews a weight claim, the court is reviewing the
    exercise of discretion by the trial court, not the underlying
    question of whether the verdict was against the weight of the
    evidence. The appellate court reviews a weight claim using an
    abuse of discretion standard.
    Commonwealth v. Jacoby, 
    170 A.3d 1065
    , 1080 (Pa. 2017) (citations and
    quotation marks omitted).
    Here, Appellant argues that the guilty verdicts were against the weight
    of the evidence because they were based solely on P.H.-N.’s allegedly
    “conflicting and vague testimony,” which “was not corroborated by anyone
    else or any other evidence.”    Appellant’s Brief at 55.   Appellant contends
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    that he was “convicted solely on [P.H.-N.’s] speculative, unreliable and
    contradictory testimony” that suggested someone known as “Uncle Tommy”
    actually committed the acts,5 and that therefore “[t]his verdict should shock
    one’s conscience.”
    Id. at 55-56.
    In its opinion, the trial court noted that it observed P.H.-N.’s testimony
    and found it to be credible.
    Her failure to remember specific dates, or more narrowly define
    time periods[,] was consistent with her tender years. As to the
    details of Appellant’s conduct, her testimony was credible. Her
    description of Appellant’s sexual assault was consistent on the
    stand and, in all relevant respects with her prior statements to
    the DHS social worker, to the medical personnel at Children’s
    Hospital, and to the forensic interviewer at [PCA].
    Trial Court Opinion, 2/1/2019, at 7. After reviewing the record and having
    been in a position to have listened to the testimony at trial, the trial court
    determined that it was “in no way shocked by the verdict, which was based
    ____________________________________________
    5 At trial, evidence was introduced that P.H.-N. disclosed being sexually
    abused by Appellant, as described hereinabove, as well as separately being
    sexually abused by an individual known to her only as Uncle Tommy. The
    sexual acts attributed to Uncle Tommy were distinct from Appellant’s in
    nature, time, and location. Thus, the jury could determine whether or not
    P.H.-N. was sexually abused by Appellant independent of any conclusions it
    may have drawn about Uncle Tommy because believing the accusations
    against Uncle Tommy did not preclude or compel a finding of guilt against
    Appellant. As instructed by the trial court, the jury could find that Appellant
    committed the crimes charged and Uncle Tommy did not, that Uncle Tommy
    committed the crimes charged and Appellant did not, that both Appellant
    and Uncle Tommy committed the crimes charged, or that neither Appellant
    nor Uncle Tommy committed the crimes charged. N.T., 5/2/2018, at 60.
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    upon the credible and not[-]meaningfully[-]impeached testimony of [P.H.-
    N.].”
    Id. “At trial,
    the jury was the ultimate fact-finder and the sole arbiter of
    the credibility of each of the witnesses.” 
    Jacoby, 170 A.3d at 1080
    . “A jury
    is entitled to resolve any inconsistencies in the Commonwealth’s evidence in
    the manner that it sees fit.”
    Id. Appellant cross-examined
    P.H.-N.
    extensively regarding her delayed reporting, potential bias against Appellant,
    prior inconsistent statements, and accusations against Uncle Tommy. See
    N.T., 5/1/2018, at 36-53. The jury was permitted to credit the testimony of
    P.H.-N. notwithstanding some inconsistencies with her prior statements.
    Assessing all of the evidence according to the governing principles cited
    above, we conclude that the trial court did not abuse its discretion when it
    denied Appellant’s weight claim, and therefore Appellant is not entitled to
    relief.
    Appellant next argues that the trial court erred in denying his motion
    in limine to preclude evidence from P.H.-N.’s videotaped interview that
    Appellant had guns in the house.           Appellant’s Brief at 56-57.6   We review
    this claim mindful of the following.
    ____________________________________________
    6 On appeal, Appellant also argues that the trial court erred in denying his
    motion in limine to preclude evidence from P.H.-N.’s videotaped interview
    that Appellant had knives and swords in the house. Appellant’s Brief at 56-
    57. However, at the pre-trial hearing on this motion, Appellant specifically
    stated that he was “not objecting to anything coming in about the knife or
    (Footnote Continued Next Page)
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    The admission of evidence is solely within the discretion of the
    trial court, and a trial court’s evidentiary rulings will be reversed
    on appeal only upon an abuse of that discretion. An abuse of
    discretion will not be found based on a mere error of judgment,
    but rather occurs where the court has reached a conclusion
    that overrides or misapplies the law, or where the judgment
    exercised is manifestly unreasonable, or the result of partiality,
    prejudice, bias or ill-will. To constitute reversible error, an
    evidentiary ruling must not only be erroneous, but also harmful
    or prejudicial to the complaining party. [A]n evidentiary error of
    the trial court will be deemed harmless on appeal where the
    appellate court is convinced, beyond a reasonable doubt, that
    the error could not have contributed to the verdict.
    Commonwealth v. Manivannan, 
    186 A.3d 472
    , 479-80 (Pa. Super. 2018)
    (citations and quotation marks omitted).
    Prior to trial, Appellant sought to exclude the portion of P.H.-N.’s
    interview that mentioned Appellant having “guns and everything in the
    house.’” N.T., 4/30/2018, at 32. On appeal, Appellant argues that the trial
    court erred in not excluding this portion of the interview because, according
    to Appellant, this evidence attributed unrelated criminal activity to Appellant,
    thereby tainting the jury.       Appellant’s Brief at 58.   Appellant argues that
    there was no indication that P.H.-N. was threatened with guns, and
    therefore the trial court erred in concluding the statement was admissible “to
    show that it might have affected [P.H.-N.’s] delay in reporting because she
    (Footnote Continued) _______________________
    the sword” because P.H.-N. mentioned those items as “part of her
    allegations in this case[.]” N.T., 4/30/2018, at 31-32. As such, Appellant
    has waived any challenge to the introduction of P.H.-N.’s statement as to the
    knife and sword, and we limit our analysis of this claim to P.H.-N.’s
    statement regarding guns. See Pa.R.A.P. 302(a) (“Issues not raised in the
    lower court are waived and cannot be raised for the first time on appeal.”).
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    was scared.”
    Id. at 60.
       Appellant contends that because there was no
    purpose to have guns in the house, any mention of them really “would be to
    show someone who had a propensity to commit a crime or was depraved.
    This would surely taint the jury in a case where the evidence was very
    questionable.”
    Id. In denying
    Appellant’s motion in limine, the trial court found that the
    statement was relevant to P.H.-N.’s state of mind, and that its probative
    value was not outweighed by its prejudicial effect. N.T., 4/30/2018, at 33.
    In its Rule 1925(a) opinion, the trial court further explained its ruling as
    follows.
    The relevance of the testimony was not that Appellant had
    guns and knives or swords in the house, but rather that
    [P.H.-N.] believed there were guns, knives or swords in the
    house. This belief went to her state of mind of fearing Appellant
    and not telling family, friends or others that he was sexually
    abusing her.     The defense, as demonstrated by the cross-
    examination of [P.H.-N.] and [] Austin, as well as the defense
    opening [statement] and closing [argument], was that the
    failure to promptly report the assaults was a sign of lack of
    credibility. The fact of [P.H.-N’s] fear[] and the factors that may
    have caused her to feel such fear are relevant under the facts of
    this case. Whether there were actually such guns, knives or
    swords is not the issue. It is only [P.H.-N.’s] mental state, and
    the reasons therefore, that is relevant and, in this case,
    admissible.
    Trial Court Opinion, 2/1/2019, at 8 (emphasis in original).
    At trial, the Commonwealth played the entirety of P.H.-N.’s interview,
    which was approximately 50 minutes in length. During the interview, P.H.-
    N. mentioned several times that Appellant tried to hurt her and that she was
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    worried he would hurt her if she told anyone.         As 
    referenced supra
    , she
    detailed how Appellant threatened her with a knife or sword the first time he
    sexually assaulted her. During the 50-minute interview, P.H.-N. referenced
    guns during a 15-second statement in response to the interviewer’s question
    about where the threatening knife came from. See N.T., 5/1/2018, at 106-
    07 (Exhibit C-11 (time stamp 11:35:37-11:35:52)).
    We agree with the trial court that the overarching statement about
    Appellant’s ownership of various bladed weapons was relevant to P.H.-N.’s
    state of mind and explanation for her delayed reporting.              The fleeting
    reference therein to guns, which lasted mere seconds in an almost hour-long
    interview and was part and parcel of P.H.-N.’s answer about the knife, was
    not unduly prejudicial to Appellant.      Moreover, we note that contrary to
    Appellant’s assertions, gun ownership is not tantamount to evidence of
    criminal activity or depravity.   Accordingly, we conclude the trial court did
    not abuse its discretion in denying Appellant’s motion in limine.
    Finally, we address Appellant’s sentencing claims.        First, Appellant
    alleges that the trial court abused its discretion in failing to consider
    mitigating   factors   and   sentencing   Appellant   outside   the    sentencing
    guidelines without providing adequate reasons. Appellant’s Brief at 60-61.
    Such claims challenge the discretionary aspects of Appellant’s sentence.
    See Commonwealth v. Archer, 
    722 A.2d 203
    , 211 (Pa. Super. 1998).
    Thus, we consider this claim mindful of the following.
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    Challenges to the discretionary aspects of sentencing do not
    entitle an appellant to review as of right.            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
    appellant has filed a timely notice of appeal, see Pa.R.A.P.
    902 and 903; (2) whether the issue was properly
    preserved at sentencing or in a motion to reconsider and
    modify sentence, see Pa.R.Crim.P. 720; (3) whether
    appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
    (4) whether there is a substantial question that the
    sentence appealed from is not appropriate under the
    Sentencing Code, 42 Pa.C.S.[] § 9781(b).
    Commonwealth v. Griffin, 
    65 A.3d 932
    , 935 (Pa. Super. 2013) (some
    citations omitted).
    Appellant has satisfied the first three requirements: he timely filed a
    notice of appeal, preserved the issue in a post-sentence motion, and
    included a Pa.R.A.P. 2119(f) statement in his brief.      Therefore, we now
    consider whether Appellant has raised a substantial question for our review.
    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.” 
    Griffin, 65 A.3d at 935
    (citation and quotation marks
    omitted).
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    J-A04013-20
    In Appellant’s Pa.R.A.P. 2119(f) statement, he contends that a
    substantial question exists because the trial court failed to consider
    mitigating factors and failed to provide adequate reasons for imposing an
    excessive sentence outside the guidelines range. Appellant’s Brief at 41-43.
    These issues present a substantial question, and we will therefore review the
    merits of these arguments. See Commonwealth v. Mulkin, ___ A.3d ___,
    
    2020 WL 610939
    at *2 (Pa. Super 2020) (concluding Mulkin raised
    substantial question by asserting that the sentencing court failed to consider
    mitigating evidence when imposing an aggravated-range sentence).
    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.
    ***
    When imposing [a] 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.
    Commonwealth v. Antidormi, 
    84 A.3d 736
    , 760-61 (Pa. Super. 2014)
    (internal citations and quotation marks omitted).
    At the sentencing hearing, the trial court heard argument from
    Appellant’s counsel and the Commonwealth. On Appellant’s behalf, the trial
    court also heard from Appellant, Appellant’s girlfriend, and Appellant’s
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    friend. On behalf of P.H.-N., the trial court heard from her foster mother.
    Prior to imposing the aforementioned aggregate sentence, the trial court
    provided the following explanation.
    I’ve considered the arguments of both counsel, the [PSI] report,
    the sentencing guidelines report, [Appellant’s] allocution, the
    testimony of the defense witnesses, as well as the particular
    circumstances of this case and [the letter from P.H.-N.’s foster
    mother].     This court notes as mitigating factors that the
    guidelines although rightfully high somewhat overstate
    [Appellant’s] criminal history since his prior record score of four
    is comprised mainly of relatively minor theft offenses that are
    not recent. An important mitigating factor of this court is
    [Appellant’s] advanced age,[7] his physical condition, which
    includes a rupture at L3, L4 discs, history of prior substance
    abuse and mental history, PTSD, anxiety, et cetera. The court
    also notes that today he is wheelchair bound with medical needs
    that may never be fully addressed within the Department of
    Corrections.
    On the other hand, in addition to the gravity of the
    offenses he’s been convicted of, this court will consider as an
    aggravating factor the long-lasting effect on [P.H.-N.], and, to
    the extent that the victim of any crime such as this would be
    long-lasting, in this case the court notes that [Appellant’s]
    conduct was protracted and lasted for years.
    The following sentence will hold [Appellant] accountable
    while taking into account his rehabilitative needs, the effect on
    [P.H.-N.], and the need to protect society, which unusually is
    somewhat of a minor circumstance in this case given where
    [Appellant] is now.    This court places heavy emphasis on
    [Appellant’s] advanced age because time means more to him
    than anyone else. Given the circumstances, this will turn out to
    be a life sentence. That’s inevitable if we are to hold him
    accountable.
    N.T., 9/21/2018, at 26-27 (unnecessary capitalization omitted).
    ____________________________________________
    7   At the time of sentencing, Appellant was 67 years old.
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    We note that the trial court erroneously stated that Appellant’s
    conduct lasted for years, when the evidence indicated that it lasted for less
    than one year. However, the record indicates that the trial court reviewed
    the sentencing guidelines, the PSI report, the testimony and letters offered,
    and specifically considered Appellant’s mitigating factors, placing “heavy
    emphasis on [Appellant’s] advanced age[,]” prior to imposing the sentence.
    Id. Thus, it
    is evident that the trial court considered mitigating factors and
    stated its reasoning for the imposed sentence. Accordingly, Appellant is not
    entitled to relief on his discretionary-aspects-of-sentencing claim.
    Finally, we address Appellant’s claim that the sentences imposed on
    his EWOC and corruption of minors convictions are illegal. “Issues relating
    to the legality of a sentence are questions of law[.]     …   Our standard of
    review over such questions is de novo and our scope of review is plenary.”
    Commonwealth v. Cardwell, 
    105 A.3d 748
    , 750 (Pa. Super. 2014)
    (citation omitted).    “[A] sentence that exceeds the statutory maximum is
    illegal.   If a court imposes a sentence outside of the legal parameters
    prescribed by the applicable statute, the sentence is illegal and should be
    remanded for correction.” 
    Infante, 63 A.3d at 363
    (citations and quotation
    marks omitted).
    Appellant was convicted of EWOC and corruption of minors as felonies
    of the third degree.        See 18 Pa.C.S. § 4304(b)(1)(ii); 18 Pa.C.S.
    § 6301(a)(1)(ii).     Section 1103 of the Crimes Code sets the maximum
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    sentence of imprisonment permissible for felonies of the third degree at not
    more than seven years. 18 Pa.C.S. § 1103(3). Accordingly, we agree with
    Appellant that his sentences of five-to-ten years of imprisonment for EWOC
    and corruption of minors are illegal, and remand for resentencing on those
    counts. See Commonwealth v. Eberts, 
    422 A.2d 1154
    , 1156 (Pa. Super.
    1980) (per curiam) (“Where a case requires a correction of sentence, this
    [C]ourt has the option of either remanding for resentencing, or amending
    the sentence directly.”).
    Convictions affirmed.   Judgment of sentence affirmed in part and
    vacated in part. Case remanded for resentencing. Jurisdiction relinquished.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 6/22/20
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Document Info

Docket Number: 3026 EDA 2018

Filed Date: 6/22/2020

Precedential Status: Non-Precedential

Modified Date: 12/13/2024