Com. v. Brubaker, M. ( 2020 )

J-A24001-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW JOSEPH BRUBAKER :
:
Appellant : No. 1287 WDA 2019
Appeal from the Judgment of Sentence Entered April 22, 2019
In the Court of Common Pleas of Clearfield County Criminal Division at
No(s): CP-17-CR-0000844-2018
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY: BENDER, P.J.E. FILED OCTOBER 07, 2020
Appellant, Matthew Joseph Brubaker, appeals from the aggregate
judgment of sentence of 20 to 41 years’ incarceration, imposed after he pled
guilty to one count of corruption of minors, 730 counts of sexual intercourse
with animals, and 730 counts of cruelty to animals. Appellant solely
challenges the discretionary aspects of his sentence. We affirm.
The trial court set forth the following summary of the facts and
procedural history of this case:
The case at bar involves sexual intercourse with horses,
goats, and dogs by … [Appellant,] and the exposing of a minor
child (sixteen years old) to these deviate sex acts. No trial was
held, but [Appellant entered] a guilty plea and accepted all facts
in the affidavit of probable cause[,] as set forth below.
[Appellant], Terry Wallace (“Wallace”), and Marc Measnikoff
(“Measnikoff”) all owned a plot of land in Munson, Pennsylvania.
[Appellant] and Measnikoff shared a camper on one side of the
property and Wallace and his child lived in a camper on the other
side of the property. [Appellant] owned five horses, four of which
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were female, one of which was male. Wallace owned one horse.
Measnikoff owned nine horses, seven of which were female and
two of which were male. There were also goats, at least one cow,
and dogs on the property. [Appellant] had sexual intercourse with
dogs, goats, a cow, and each of the female horses. [Appellant]
had sexual intercourse with animals daily. [Appellant] would often
videotape these sexual encounters.
This case came to the attention of police after an interview
with Wallace’s child, who reported that for the past four [to] five
years[,] he ha[d] been exposed to all three men having sexual
intercourse with animals on a daily basis. The child stated that he
first discovered this conduct when he found a video of his father,
Wallace, having sexual intercourse with a goat on the[ir] shared
i[P]ad. The child reported that Wallace would receive a message
from Measnikoff and/or [Appellant] and go to their camper. The
child would then be expected to locate a particular horse, walk it
into a V shaped chute, and wait on the other side of the wall until
whoever was abusing the horse finished having sexual intercourse
with it. The child also noted that the living conditions were
deplorable, as he had to regularly collect rain water to take a
shower, had a limited supply of canned food, no electricity, and
no bathrooms were located on the property.
On January 2[4], 2019[, Appellant] entered an open plea of
guilt, providing the sentencing court full discretion in determining
sentencing, to one count of corruption of minors (misdemeanor of
the first degree), [730] counts of sexual intercourse with animals
(misdemeanor of the second degree), and [730] counts of cruelty
to animals (summary offense). At the … sentencing hearing, it
was determined that [Appellant] had a prior record score of zero.
The standard range for corruption of minors [was] restorative
sanctions [to] three months[’ incarceration]. This court sentenced
[Appellant] in the aggravated range to six months[’ to] two years[’
incarceration] for corruption of minors. The standard range for
sexual intercourse with animals [was] restorative sanctions. This
court sentenced [Appellant] in the aggravated range to three …
[to] six months[’ imprisonment] on the first [78] counts of sexual
intercourse with … animal[s,] to be served consecutively. Cruelty
to animals is a summary offense. [Appellant] was sentenced to
two years[’] probation for cruelty to animals[,] to be served
concurrent to the above[-]mentioned sentence. Additionally, this
court determined [Appellant] shall have no unsupervised contact
with anyone under the age of eighteen years old, and shall not
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consume alcohol.[1] In making its determination, the court noted
… the severity of the acts, the number of acts committed by
[Appellant], the fact that [Appellant] videoed the acts, and the
harm that resulted [to] the child from viewing these videos at all,
but especially at such a young age.
On [June 25], 2019, [Appellant’s] motion for
reconsideration of sentence was heard. On the sexual intercourse
with animals sentence, defense counsel argued that by using the
amount of counts as a reason for sentencing in the aggravated
range, this court [had] double-aggravat[ed] the charges. Defense
counsel further argued that the majority of the sentence imposed
related to the sexual intercourse with animals charge[,] rather
than the corruption of minors charge, which he deemed to be
backwards. … The Commonwealth responded that each count
constitutes a specific instance of criminal conduct, and that
[Appellant] should be sentenced accordingly.
Trial Court Opinion (TCO), 8/20/19, at 1-3 (unnecessary capitalization
omitted).
We note that in Appellant’s post-sentence motion and at the hearing
thereon, he asked the court to amend the portion of his sentence prohibiting
him from having any contact with minors to precluding only unsupervised
contact with children. The court granted this aspect of Appellant’s motion and
amended the sentencing order accordingly. In all other respects, the court
denied Appellant’s post-sentence motion.
Appellant filed a timely notice of appeal, and he timely complied with
the court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. The court filed its Rule 1925(a) opinion on August
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1 Measnikoff and Wallace also pled guilty to the same offenses as Appellant,
and were both sentenced to identical, aggregate terms of 20 to 41 years’
incarceration. Measnikoff’s appeal is docketed at 1405 WDA 2019, and
Wallace’s appeal is docketed at 904 WDA 2019.
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20, 2019. Herein, Appellant states one issue for our review: “Did the [trial]
court err in imposing a sentence that was manifestly excessive in that it: failed
to account for the rehabilitative needs of [Appellant], was inconsistent with
the protection of the public, does not factor in [Appellant’s] lack of a prior
record, there is the absence of aggravating circumstances[,] and[] there is a
disparity between the charges concerning the animals and the charge
concerning the minor.” Appellant’s Brief at iv.2
Appellant’s issue implicates the discretionary aspects of his sentence.
Challenges 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:
We conduct a four-part analysis to determine: (1) whether
[the] appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether [the]
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing
Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006),
appeal denied, 589 Pa. 727, 909 A.2d 303 (2006). 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
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2 Appellant sets forth three additional issues in his Statement of the Questions
Involved, but then states he is withdrawing those claims in the Argument
portion of his brief. See Appellant’s Brief at 10. Therefore, we do not address
those claims herein.
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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.
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
In this case, Appellant preserved his sentencing issue in his post-
sentence motion, he filed a timely appeal, and he has included a Rule 2119(f)
statement in his appellate brief. Therein, he contends that we should grant
his “request for allowance of appeal with respect to the discretionary aspects
of his sentence because this matter involves circumstances where the
application of the guidelines are clearly unreasonable, resulting in an
excessive sentence due to the [trial] court[’s] running multiple counts
consecutive[ly].” Appellant’s Brief at 5. Notably, Appellant does not explain
what circumstances make the court’s decision to impose consecutive
sentences unreasonable in this case. He also cites no case law to support that
this claim constitutes a substantial question for our review. In other words,
nothing in Appellant’s Rule 2119(f) statement amounts to “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
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fundamental norms which underlie the sentencing process.” Griffin, 65 A.3d
at 935 (citation omitted).
Nevertheless, even had Appellant demonstrated a substantial question
for our review, we would conclude that no relief is due. We are mindful that:
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.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).
Here, Appellant argues that “the court’s sentence was unnecessarily and
excessively focused on deterrence and incapacitation[,]” rather than on his
rehabilitative needs. Appellant’s Brief at 8. He acknowledges that in the
court’s Rule 1925(a) opinion, it stated:
This [c]ourt determined that a long incarceration will allow
[Appellant] adequate time to work on his mental health through
treatment and time to refrain from said acts so that he may
become a healthy, law abiding, and productive member of society.
This [c]ourt determined that it will take a significant amount of
time to undo the harm that has been done within [Appellant’s]
own mind.
TCO at 6. Appellant complains that the court made the decision that his
rehabilitation required a lengthy term of incarceration without “any
psychological evaluation … or any expert testimony as to the amount of time
necessary for Appellant to be rehabilitated….” Appellant’s Brief at 9.
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However, our review of the record confirms that Appellant at no point
requested that a psychological evaluation be conducted, or sought to admit
expert testimony regarding his rehabilitative needs. Moreover, in the court’s
opinion, it explained that it imposed aggravated-range sentences
consecutively because it discerned that a lengthy term of incarceration is
warranted not only for Appellant’s rehabilitative needs, but also to protect
society from his criminal propensities, and because “[t]he nature and severity
of these crimes shocked the consciousness of [the] court.” TCO at 6. The
court stressed that “[f]or four [to] five years[, Appellant] regularly had sexual
intercourse with goats, a cow, dogs[,] and horses. He filmed video[s] of these
acts. He recruited a child’s involvement in helping facilitate the sexual
encounters with the animals. For years[,] this behavior continued until the
child reported it to the police.” Id. at 6-7. Accordingly, the court determined
that consecutive, aggravated-range sentences were appropriate. It balanced
this decision by only sentencing Appellant on 78 of the 730 counts of sexual
intercourse with animals. Given this record, and the circumstances of this
case, we would discern no abuse of discretion by the court in sentencing
Appellant, even had he presented a substantial question for our review.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2020
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