Com. v. Smith, C. ( 2021 )

J-S55005-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARL WILLIAM SMITH :
:
Appellant : No. 1315 WDA 2019
Appeal from the Judgment of Sentence Entered July 3, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0006401-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARL WILLIAM SMITH :
:
Appellant : No. 1316 WDA 2019
Appeal from the Judgment of Sentence Entered July 3, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0014030-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CARL WILLIAM SMITH, IV :
:
Appellant : No. 1317 WDA 2019
Appeal from the Judgment of Sentence Entered July 3, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0006402-2018
J-S55005-20
BEFORE: BOWES, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY BOWES, J.: FILED: APRIL 9, 2021
Carl William Smith appeals his judgment of sentence of forty years and
six months to eighty-one years of imprisonment in the aggregate, which was
imposed following his conviction of six sexual offenses involving three minor
females. After thorough review, we affirm.
Appellant was charged with twenty-four counts of sex-related offenses
involving his young nieces by marriage, S.M. and her younger sister, K.M.
Another six charges arose from Appellant’s sexual misconduct with his
childhood friend’s young daughter, K.W. The evidence presented at trial
revealed the following.1
At some point in late 2011, S.M., born in December 2001, began
spending every other weekend with her Aunt Amber and Uncle Carl, Appellant
herein. At that time, the couple lived in Belle Vernon. On occasion, her
younger sister K.M. would come along. S.M. testified that when she was nine
or ten years old, Aunt Amber was at work and S.M. was watching television.
She received a text message from her uncle asking her to come upstairs to
his bedroom. When she entered the bedroom, he shoved her onto the bed,
locked the door, and removed her pants and underwear. He had sexual
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*Retired Senior Judge assigned to the Superior Court.
1 Initially, the Commonwealth proceeded to trial against Appellant solely on
charges related to S.M. and K.M. A mistrial was declared when the jury could
not arrive at a verdict. The retrial included the charges involving K.W.
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intercourse with S.M. and threatened to be “more aggressive” with her if she
told anyone. N.T. Jury Trial, 4/3-8/19, at 78. Afterwards, S.M. went into the
bathroom and cried. Id. at 79-80. Thereafter, Appellant had sexual
intercourse with S.M. on multiple occasions in the bedroom he shared with
Aunt Amber in the Belle Vernon home. S.M. did not tell anyone what was
occurring because she was too scared. Id. at 83.
The sexual abuse continued after Appellant and Aunt Amber moved to
a house in Fayette City. S.M. remembered that the bedroom in that house
did not have a door. Appellant would push a wardrobe in front of the doorway
before forcing S.M. to have sexual intercourse with him. Id. at 85-86. He
would also touch her vaginal area and place her hand on his penis. Id. at 86.
Sometimes he would make her to perform oral sex upon him. Id. at 87.
When Appellant and Aunt Amber moved into a home in South Park with
Appellant’s mother and her husband, the abuse continued in his daughter’s
bedroom. As Appellant’s daughter slept in the bed, Appellant would awaken
S.M. as she slept on the floor and engage in vaginal intercourse. Id. at 89.
It was during this time that S.M. confided in a couple of friends and her
cousin Calvin about the sexual abuse. When S.M. was about sixteen years
old, Calvin told Aunt Amber about the abuse. Id. at 94. Over text messages,
Aunt Amber questioned S.M. whether Uncle Carl had ever touched her
inappropriately, and S.M. confirmed the specifics of the sexual abuse. Id. at
95. Aunt Amber encouraged S.M. to tell her parents and report the
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misconduct to police, but S.M. did not want others to know because she was
afraid they would judge her.
Aunt Amber forwarded screen shots of her text message exchange with
S.M. to S.M.’s father. Id. at 238. He contacted his local police department,
which in turn contacted the South Park Police. S.M. and her father met with
Officer Brian Rucienski on April 11, 2018. Id. at 144. Her father excused
himself from the room when it became apparent that S.M. was uncomfortable
discussing the sexual abuse in his presence. Id. at 149. The officer described
S.M. as “emotional.” Id. She cried so hard that she was often unable to
speak. S.M. had to stop and collect herself frequently as she related the
details of the latest assaults that had taken place in South Park, and abuse
dating back to 2011. S.M. explained to Officer Rucienski she had not told
anyone earlier because she was afraid that Appellant would hurt her and that
her peers would judge her negatively. Id. at 151.
Officer Rucienski contacted the Allegheny County Police Sex Crimes
Unit, and the case was assigned to Detectives Corinne Orchowski and Richard
Keebler. During a subsequent interview with the detectives, S.M. provided
details of the sexual assaults. The authorities also learned that S.M.’s younger
sister, K.M., may have been a victim as well. Although K.M. had initially
denied in a text message exchange with Aunt Amber that Appellant sexually
assaulted her, she later acknowledged to her father, and then Detective
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Orchowski, that Appellant had touched her breasts under her clothes multiple
times in the South Park house. Id. at 354.
Based on her conversations with S.M. and K.M., Detective Orchowski
consulted the Office of the District Attorney and obtained a warrant for
Appellant’s arrest. Following his arrest on April 13, 2018, Appellant agreed to
speak with the detectives. He denied any inappropriate behavior but
explained that he may have “accidentally’ touched K.M. on her breasts or
buttocks while they were “wrestling around.” Id. at 374. Appellant also told
the father of S.M. and K.M., who was wearing a wire, that he may have
touched the private parts of one of the girls while “playing around.” Id. at
246-47.
In September 2018, Detective Orchowski learned that K.W. may have
also been abused by Appellant. Id. at 366. K.W. told the detective that when
she was ten to twelve years old, she would often spend time at Appellant’s
home. On two occasions, Appellant touched her vagina underneath her
clothes while she was at Appellant’s home. Id. at 224-27. She also reported
that she went on a camping trip with Uncle Carl when she was eleven years
old. K.W. was asleep in the top bunk of a bunk bed when Appellant awakened
her by laying on top of her and putting his penis inside her vagina. Id. at
219-23. At trial, K.W. agreed with defense counsel’s suggestion that this
occurred in the summer of 2016. It was stipulated that Appellant was
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incarcerated throughout the summer of 2016, and Appellant asserted an alibi
defense with regard to the rape claim asserted by K.W.
At the close of the evidence, the Commonwealth moved to withdraw all
but three counts against Appellant involving S.M.: rape of a child, involuntary
deviate sexual intercourse (“IDSI”) with a person less than sixteen, and
unlawful contact with a minor. As to K.M., the Commonwealth proceeded only
on one count of indecent assault without consent. All but two counts involving
K.W. were withdrawn: rape of a child and unlawful contact with a minor. The
jury found Appellant guilty of all six charges.
On July 3, 2019, as to S.M., the trial court sentenced Appellant to ten
to twenty years of imprisonment for rape of a child; six to twelve years of
imprisonment for IDSI, and seven to fourteen years for unlawful contact with
a minor, with all sentences to run consecutively. For his conviction of indecent
assault of K.M., Appellant was sentenced to a consecutive term of ten to
twenty months of imprisonment. With regard to K.W., the trial court imposed
a consecutive term of imprisonment of ten to twenty years on the rape
conviction, and seven to fourteen years of imprisonment for unlawful contact
with a minor, to run consecutive to each other and the other sentences
imposed. Appellant filed post-sentence motions, which were denied on July
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26, 2019. This timely appeal followed, and Appellant complied with the trial
court’s Rule 1925(b) order. No Rule 1925(a) opinion was prepared.2
Appellant presents the following questions for our review, which we
have re-ordered for ease of disposition:
I. W[hether] the evidence [was] insufficient to support a
conviction for Count I-rape of a child, at CC# 2018-14030,
because [Appellant] had an alibi defense that he was
incarcerated during the only time that K.W. alleged that he
had sexual intercourse with her?
II. Were the verdicts against the weight of the evidence
because the complaining witnesses’ testimony [were]
unreliable?
III. Did the trial court err in not granting a mistrial when the
Commonwealth did not provide the defense with
exculpatory text message evidence until mid-trial?
IV. Did the trial court abuse its discretion when it imposed a
manifestly excessive and unreasonable aggregate sentence
that was not individualized , and that was based o[n] the
crimes alone rather than on proper consideration of
[Appellant’s] character and rehabilitative needs?
Appellant’s brief at 11-12 (unnecessary capitalization omitted).
When an appellate court reviews a claim “challenging the sufficiency of
the evidence to support a conviction,” it “must determine whether the
evidence admitted at trial, as well as all reasonable inferences derived
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2 The administrative judge of the criminal division of the Allegheny County
Court of Common Pleas, the Honorable Jill Rangos, ordered the record to be
transmitted without a trial court opinion due to the unavailability of trial judge
Mark Tranquilli, who had been placed on suspension. We note that Appellant
does not contend that the trial judge’s suspension or the circumstances
surrounding it contributed to the alleged errors.
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therefrom, viewed in favor of the Commonwealth, supports the jury’s finding
of all of the elements of the offense beyond a reasonable doubt.”
Commonwealth v. Peck, 242 A.3d 1274, 1279 (Pa. 2020) (citation omitted).
A challenge to the sufficiency of the evidence presents a question of law.
Hence, our scope of review is plenary, and our standard of review is de novo.
Commonwealth v. Bishop, 936 A.2d 1136, 1141 (Pa.Super. 2007).
Appellant argues that the evidence that he raped K.W. was insufficient
to sustain his conviction of that offense under 18 Pa.C.S. § 3121(c). K.W.
testified that Appellant raped her on one occasion during a camping trip in the
summer of 2016, which she agreed was June, July, or August of 2016. It was
stipulated that Appellant was incarcerated from April 20, 2016 to January 26,
2017. Appellant contends that since he was incarcerated during those
months, “it was impossible for him to have raped K.W. at a camping trip that
summer.”3 Appellant’s brief at 28. Given K.W.’s testimony that the rape
occurred during that three-month span, he argued that a verdict that the rape
occurred during some other point when there was no evidence to support such
a claim would be “contradictory” and “based upon surmise or conjecture.”
Commonwealth v. Karkaria, 625 A.2d 1167, 1172 (Pa. 1993).
The Commonwealth counters that the jury simply did not believe that
that the rape occurred in the summer of 2016. K.W. testified that the rape
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3 Appellant filed a Notice of Alibi on March 3, 2019.
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occurred when she was eleven years old, and that she was born on May 20,
2004. See N.T. Jury Trial, 4/3-8/19, at 212, 219-223. The Commonwealth
points out that the rape did not take place in the summer of 2016 because
K.W. was twelve years old that summer. It contends that, “[t]he jurors,
having heard both K.W.’s direct examination and [Jamie] Mesar’s expert
opinion that child sexual-assault victims are more focused on the act that is
being forced upon them by an adult than they are the date on which the act
is occurring, were thus free to reject what defense counsel elicited from the
victim regarding the specific season and year in which the rape was believed
to have occurred.”4 Commonwealth’s brief at 21. Furthermore, the
Commonwealth added that neither due process concerns nor other law
required it to establish the precise date the rape took place as “the prosecution
is afforded broad latitude in attempting to fix the date of offenses when there
has been a continuing course of conduct, and ‘[t]his is especially true when
the case involves sexual offenses against a child victim.’” Id. at 22 (quoting
Commonwealth v. Brooks, 7 A.3d 852, 858 (Pa.Super. 2010)).
While Appellant acknowledges that courts afford young witnesses some
leeway in pinpointing the dates they were victimized, he contends that K.W.
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4 The Commonwealth offered the expert testimony of Jamie Mesar, the
Director of Operations at the UPMC Children’s Hospital Child Advocacy Center.
The trial court ruled that she was qualified to testify as an expert “in the fields
of forensic interviewing and child abuse behaviors in general.” N.T. Jury Trial,
4/3-8/19, at 301. She explained to the jury the many ways children talk about
situations such as sexual abuse and how they recall them.
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should not be given such leeway because she was fourteen years old when
she testified at trial. See Appellant’s brief at 34 (distinguishing, e.g.,
Commonwealth v. G.D.M., 926 A.2d 984, 985 (Pa.Super. 2007)
(complaining witness was six-years old); and Commonwealth v. Groff, 548
A.2d 1237, 1239 (Pa.Super. 1988) (complaining witness was seven-years
old)). Appellant relies upon Karkaria, in support of his claim that the verdict
herein is “insufficient as a matter of law.” Id. at 1172.
Under 18 Pa.C.S. § 3121(c), “A person commits the offense of rape of
a child, a felony of the first degree, when the person engages in sexual
intercourse with a complainant who is less than 13 years of age.” 18 Pa.C.S.
§ 3121(c). As the trial court instructed the jury, the date on which the
offenses occurred was not an essential element of any of the crimes charged.
See N.T. Jury Trial, 4/3-8/19, at 512. Furthermore, K.W. testified that the
rape occurred on a camping trip when she was eleven years old. Such
testimony fixed the date of the offense with reasonable certainty. Moreover,
we find K.W.’s age at the time when the crime was committed to be more
relevant than her age at trial in gauging her ability to recall the precise date
of victimization.
Finally, we find Appellant’s reliance upon Karkaria misplaced. In that
case, the complainant alleged that her stepbrother raped her more than three
hundred times over a three-year period commencing when she was eight
years old and he was seldom home. She described the same scenario for the
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hundreds of alleged assaults, but was unable to provide details that would
establish the elements of the crimes charged. In that case, the Court found
that the complaining witness had a motive to fabricate, and further, that the
large number of identical incidents defied belief. Herein, K.W. reported the
details of the assaults to her grandmother and to the police that established
the elements of the crimes charged. Furthermore, her account was consistent.
Finally, K.W. had no motive to fabricate the allegations against Appellant. For
all of these reasons, we find no merit in Appellant’s claim that the evidence
was insufficient to sustain his conviction for raping K.W.
Appellant’s next issue is a challenge to the weight of the evidence. He
alleges that the complaining witnesses’ testimony was so unreliable as to
render the verdicts against the weight of the evidence. See Appellant’s brief
at 64. In support thereof, he points to alleged inconsistencies in the witnesses’
accounts.
In reviewing a weight challenge, we are mindful of the following. “A
new trial is warranted [pursuant to a weight claim] only when the jury’s verdict
is so contrary to the evidence that it shocks one’s sense of justice and the
award of a new trial is imperative so that right may be given another
opportunity to prevail.” Commonwealth v. Morales, 91 A.3d 80, 91 (Pa.
2014) (citation omitted). That decision is within the sound discretion of the
trial court. Commonwealth v. Stokes, 78 A.3d 644, 650 (Pa.Super. 2013).
On appeal we do not review the underlying question of whether the verdict is
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against the weight of the evidence, but rather, the trial court’s exercise of its
discretion. Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013).
Appellant filed a post-sentence motion seeking a new trial based on a
verdict that was against the weight of the evidence. He focused therein on
testimony provided by his adult family members that they were always in the
homes in Belle Vernon, Fayette City, and South Park, over the seven year
period when the sexual assaults allegedly occurred, making it unlikely that he
had the ability to carry out the assaults. In addition, his daughter was in the
same room for some of the alleged assaults, which he maintained rendered
the complaining witnesses’ accounts unreasonable. He points to inconsistent
testimony from the victims. Moreover, Appellant’s mother testified that she
had reprimanded K.W. for rifling through her drawers, implying that this
incident supplied the motivation for K.W. to manufacture her claims of abuse
against Appellant.
The law is well settled that “[a] jury is entitled to resolve any
inconsistences in the Commonwealth’s evidence in the manner that it sees
fit.” Commonwealth v. Jacoby, 170 A.3d 1065, 1080 (Pa. 2017).
Furthermore, even inconsistencies in eyewitness testimony are not sufficient
to warrant a new trial on the ground that the verdict was against the weight
of the evidence. See Clay, supra at 1055.
The jury saw the witnesses, heard the alleged inconsistencies, and had
the opportunity to assess the credibility of the witnesses. Furthermore, the
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jury heard that Appellant admitted on several occasions that he may have
“accidentally” touched the girls’ private parts when “playing around” with
them. See N.T. Jury Trial, 4/3-8/19, at 246-47, 375.
The trial court denied the motion for new trial based on Appellant’s claim
that the verdict was against the weight of the evidence. While we do not have
the benefit of the trial court’s reasoning, we infer from the court’s comments
at sentencing that the jury’s verdict did not shock its sense of justice.
Commonwealth v. Landis, 89 A.3d 694, 699 (Pa.Super. 2014) (affirming
that a new trial based on a weight of the evidence claim is warranted only
“where the factfinder’s verdict is so contrary to the evidence that it shocks
one’s sense of justice”). Moreover, after a thorough review of the certified
record, we find no facts or inferences that disclose that the trial court palpably
abused its discretion in denying Appellant’s motion for a new trial based on
the weight of the evidence. No relief is due.
Appellant’s third claim involves alleged error on the part of the trial court
in denying a defense motion for mistrial when the Commonwealth failed to
provide the defense with exculpatory text message evidence before trial in
violation of Brady v. Maryland, 373 U.S. 83 (1963). Specifically, the
Commonwealth possessed a text message containing K.M.’s denial that
Appellant touched her inappropriately. Appellant contends that he received
this key piece of exculpatory evidence too late to effectively craft his defense.
The applicable law is as follows:
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In criminal trials, declaration of a mistrial serves to eliminate the
negative effect wrought upon a defendant when prejudicial
elements are injected into the case or otherwise discovered at
trial. By nullifying the tainted process of the former trial and
allowing a new trial to convene, declaration of a mistrial serves
not only the defendant’s interest but, equally important, the
public’s interest in fair trials designed to end in just judgments.
Accordingly, the trial court is vested with discretion to grant a
mistrial whenever the alleged prejudicial event may reasonably be
said to deprive the defendant of a fair and impartial trial. In
making its determination, the court must discern whether
misconduct or prejudicial error actually occurred, and if so, . . .
assess the degree of any resulting prejudice.
Commonwealth v. Rashid, 160 A.3d 838, 847 (Pa.Super. 2017) (citation
omitted). “The remedy is an extreme one and is required only when an
incident is of such a nature that its unavoidable effect deprives a defendant of
a fair and impartial tribunal.” Id.When an appellate court reviews a trial court’s order granting or denying
a mistrial, we must determine whether the trial court abused its discretion.
Id. “The court abuses its discretion if, in resolving the issue for decision, it
misapplies the law or exercises its discretion in a manner lacking reason.” Id.The underlying error alleged herein is the Commonwealth’s failure to
provide the defense in discovery with the text message from K.M. in which
she denied that Appellant had sexually abused her. The defense contends
that this was Brady material, i.e., “exculpatory or impeaching evidence,
favorable to the defense.” Commonwealth v. Brown, 200 A.3d 986, 993
(Pa.Super. 2018). Appellant asserts that the Commonwealth violated Brady
when it withheld such evidence from the defense.
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The following principles inform our review. It is the defendant’s burden
to prove that Brady evidence was suppressed by the prosecution to the
prejudice of the defendant. See Commonwealth v. Cam Ly, 980 A.2d 61,
75 (Pa. 2009). Moreover, as with discovery violations generally, a defendant
is not automatically entitled to a new trial. He must also “show how a more
timely disclosure would have affected his trial strategy or how he was
otherwise prejudiced by the alleged late disclosure.” Id. (internal quotation
marks and citations omitted).
The Commonwealth contends there was no Brady violation herein
because the tardiness of the disclosure of the text-message exchange had no
detrimental effect on Appellant’s case. It maintains that the jury was aware
early on in the trial that K.M. initially denied that Appellant had touched her
inappropriately. See Commonwealth’s brief at 27. Hence, the trial court did
not abuse its discretion in denying a mistrial.
The record reveals the following. S.M. was the first witness to testify at
trial. She identified a series of screenshots of text messages exchanged
between herself and her Aunt Amber, Appellant’s wife. Amber asked S.M. if
Appellant had ever touched her inappropriately, to which S.M. responded in
the affirmative. On cross-examination, defense counsel asserted that, in that
same exchange, there was a screenshot in which her sister K.M. “actually
denies ever being assaulted by [Appellant]; right?” S.M. replied “Yes.” N.T.
Jury Trial, 4/3-8/19, at 126-27. Defense counsel continued: “Okay. And in
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those messages, you guys talk about how [K.M.] denies ever being assaulted
by [Appellant]; right?” Id. at 127. S.M. again replied, “Yes.” Id. Thus, early
on, the jury heard that K.M. initially denied the abuse, which was also
confirmed by Amber Smith’s testimony.5 At trial, K.M. stated she could not
remember whether she denied that Appellant sexually abused her when
Amber questioned her.
At the beginning of the second day of trial, the trial court and counsel
discussed the text message thread reproduced as Commonwealth Exhibit 1.
At the first trial, the text message discussing K.M.’s denial was introduced into
evidence as part of Commonwealth’s Exhibit 1, but apparently omitted from
the exhibit in the second trial. Defense counsel moved for a mistrial based on
prosecutorial misconduct, claiming that Exhibit 1 did not match up.
The trial court pointed out that both the prosecutor and the defense
attorneys had the wherewithal to examine the exhibits from the first trial and
ascertain the discrepancy. The court also noted that K.M.’s denial was
addressed during the cross-examination of both S.M. and Amber Smith. Thus,
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5 It appears from this exchange that defense counsel knew about the text
message exchange wherein K.M. denied the abuse. It is unclear how and
when defense counsel learned of the existence of the text message, but we
note the following. This was the second trial of the cases involving S.M. and
K.M. The first trial resulted in a mistrial when the jury could not reach a
verdict. At the first trial, the text message was introduced into evidence.
Apparently neither the Commonwealth’s attorney nor the public defender,
both of whom were new to the case, were aware of the text message.
However, presumably Appellant was aware of it as he was present at the first
trial.
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the only thing the jury knew was that K.M. denied that any touching took
place. Nonetheless, the trial court invited the defense to introduce the missing
text message, or have the additional pages added to Commonwealth Exhibit
1, or to recall K.M. to confront her with the screenshots of the texts to see if
that refreshed her recollection. Id. at 284. The defense indicated that it
would have the Commonwealth introduce a new Exhibit 1 through its
detective, and then cross-examine the detective as to why there was a new
Exhibit 1 being introduced with the additional messages. Id. at 288. Instead,
the defense called Detective Richard Keebler in its own case, and the detective
explained that he became aware that Commonwealth Exhibit 1 was missing
some text messages between Amber and S.M. Id. at 406. An amended
Commonwealth Exhibit 1 was introduced that included the missing text
messages.
Thus, the record suggests that the missing text messages were not
exclusively in the possession of the Commonwealth since they had been
introduced at the first trial and all counsel had access to those exhibits. Thus,
there was no Brady violation. Moreover, even though the text messages were
exculpatory, we find no prejudice. The content of the missing text messages,
specifically K.M.’s denial in response to Amber’s question whether Appellant
had sexually abused her, was introduced into evidence with the first witness
at trial. While the defense argues that it may have altered its defense strategy
if it had been aware of the texts prior to trial, it fails to explain what it would
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have done differently. For these reasons, we find no abuse of discretion on
the part of the trial court in denying a mistrial based on the missing texts.
Appellant’s final issue is a challenge to discretionary aspects of his
sentence. The law is well settled that an appellant is not entitled to review of
a discretionary sentencing claim as of right. See Commonwealth v. Moury,
992 A.2d 162, 170 (Pa.Super. 2010). We treat his appellate brief as a petition
for permission to appeal. Before we may reach the merits of such an issue,
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, see 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, see 42 Pa.C.S.
§ 9781(b).
Id. at 170 (citation omitted).
In the case before us, Appellant filed a timely appeal, a timely post-
sentence motion raising the issue, and included a statement pursuant to
Pa.R.A.P. 2119(f) in his appellate brief. Thus, he has met the technical
requirements for review of a discretionary sentencing claim. The only
remaining question is whether he has presented a substantial question under
the Sentencing Code, 42 Pa.C.S. § 9781(b). We make that determination on
a case-by-case basis by examining whether Appellant made a colorable
argument that his sentence is either inconsistent with a specific provision of
the Sentencing Code or contrary to the fundamental norms governing
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sentencing. See Commonwealth v. Diehl, 140 A.3d 34, 44-45 (Pa.Super.
2016).
Appellant maintains that he has raised three substantial questions.
First, he relies upon Moury, supra at 171-72, to argue that the aggregate
sentence was “unduly harsh, considering the nature of the crimes and the
length of imprisonment.” He alleges further that the trial court focused only
on the impact of the crimes on the victims at the expense of consideration of
his character and rehabilitative needs. See Commonwealth v. Riggs, 63
A.3d 780, 787 (Pa.Super. 2012) (finding substantial question when appellant
alleged that court failed to consider relevant sentencing criteria such as
protection of the public, gravity of the offense, and appellant’s rehabilitative
needs). Finally, he contends that his sentence was not individualized. See
Commonwealth v. Luketic, 162 A.3d 1149, 1160, 1162 (Pa.Super. 2017)
(finding substantial question when appellant argued that court determined
sentence prior to sentencing hearing, “thereby violating the fundamental norm
that Appellant’s sentence be individualized”).
Since we have previously concluded that claims of excessiveness
coupled with averments that the trial court deviated from sentencing norms
raise a substantial question, we find Appellant is entitled to review. See
Commonwealth v. Coulverson, 34 A.3d 135, 143 (Pa.Super. 2011);
Commonwealth v. Perry, 883 A.2d 599, 602 (Pa.Super. 2005).
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We thus turn to the merits of Appellant’s discretionary sentencing claim.
Our High Court acknowledged in Commonwealth v. Walls, 926 A.2d 957,
961 (Pa. 2007), “[s]entencing is a matter vested in the discretion of the
sentencing judge.” Hence, we review it for an abuse of discretion. Id.Appellant contends that the trial court abused its discretion when it
sentenced Appellant to an aggregate sentence of forty and one-half to eighty-
one years of total confinement. In support thereof, he alleges that his
“sentence was manifestly excessive, not individualized, and imposed based on
the nature of the crimes and victim impact alone at the expense of proper
consideration of Appellant’s character and rehabilitative needs.” Appellant’s
brief at 49. Appellant points out that he will not be eligible for parole until he
is more than seventy years old, and thus, his bond with his children will be
severed, and he will be effectively “precluded from any meaningful chance of
rehabilitation in and positive contribution to the community.” Id. In imposing
the sentence, Appellant maintains that the court did not consider mitigating
evidence such as his mental illness, employment history, scant criminal
record, and the fact that he had not an opportunity to participate in sex
offender therapy, but rather, focused solely on the impact of the crimes on
the victims. Id. at 54. Moreover, Appellant alleges that the trial court merely
said that it considered the guidelines, but it did not recite the guidelines on
the record. Finally, in justifying the imposition of consecutive sentences,
Appellant argues that the trial court gave the same “stock speech.” Id. at 56.
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The record of the sentencing hearing does not support Appellant’s
contentions. The Commonwealth introduced a certified copy of Appellant’s
January 7, 2015 Fayette County conviction of two third-degree felony offenses
of unlawful contact with a child and corruption of a minor, as well as a first-
degree misdemeanor indecent assault of a child less than thirteen years of
age. See Commonwealth Exhibit 1. Appellant was sentenced therein to one
to two years of incarceration and ordered to undergo sex offender therapy.
He committed some of the conduct charged in the current cases prior to that
2015 conviction, but other sex offenses continued until 2018, long after that
conviction. Victim impact statements from S.M. and K.M. were introduced as
Commonwealth Exhibits 2 and 3.
The trial court stated it had reviewed the presentence investigation.
See N.T. Sentencing, 7/3/19, at 14. Furthermore, it stated on the record that
it had considered the sentencing guidelines, as well as mitigating and
aggravating factors. Id. It mentioned specifically that it had contemplated
Appellant’s mental health issues and counsel’s argument that a lengthy
sentence would sever his bond with his older daughter.6 Id. The court also
indicated that it weighed Appellant’s status as a Megan’s law registrant when
he committed at least some of the offenses herein. Id. The trial court
____________________________________________
6At sentencing, defense counsel also apprised the trial court of Appellant’s
mental health issues and the deleterious effect of prolonged imprisonment on
Appellant’s bond with his daughter.
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believed Appellant to be a danger to society and that if he was supervised in
the community, he would re-offend. Id. at 15.
The court imposed sentences at each count that did not exceed the
statutory maximums, and ran the sentences consecutively. As Appellant
reluctantly acknowledges, it is the consecutive nature of the sentences that
resulted in an aggregate sentence that he claims is excessive.
We find no abuse of discretion. Appellant was convicted of multiple
offenses arising out of different incidents involving three young victims. In
such circumstances, he is “not entitled to a ‘volume discount’ on [his]
aggregate sentence.” Commonwealth v. Foust, 180 A.3d 416, 434
(Pa.Super. 2018). Furthermore, it is within a trial court’s sound discretion
whether to run a sentence consecutively or concurrently to other sentences
being imposed. See Commonwealth v. Bowen, 55 A.3d 1254, 1265
(Pa.Super. 2012). The trial court noted that each count “involved a separate
or series of decisions that [Appellant] made as to each of these three girls.”
N.T. Sentencing, 7/3/19, at 19. In each instance, Appellant “had chances to
make different choices . . . [b]ut at each turn, [he] chose to make the wrong
choice.” Id.Our review of the record dispelled any notion that the trial court “ignored
or misapplied the law, exercised its judgment for reasons of partiality,
prejudice, bias or ill will, or arrived at a manifestly unreasonable decision” in
deciding to run Appellant’s sentences consecutively. Commonwealth v.
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DiSalvo, 70 A.3d 900, 903 (Pa.Super. 2013). These were serious crimes
perpetrated upon vulnerable young children by a person who had already been
convicted of sexual offenses against children, thus demonstrating the
likelihood that he would reoffend. On these facts, the trial court’s decision to
run the sentences consecutively was not an abuse of discretion and did not
result in an excessive sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/09/2021
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