Com. v. Vanderslice, S. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN VANDERSLICE :
:
Appellant : No. 402 EDA 2020
Appeal from the Judgment of Sentence Entered December 13, 2019
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0003104-2018
BEFORE: LAZARUS, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: Filed: July 8, 2021
Shawn Vanderslice appeals from the judgment of sentence, entered in
the Court of Common Pleas of Chester County, after he entered a hybrid guilty
plea1 to rape by forcible compulsion,2 involuntary deviate sexual intercourse
(IDSI),3 kidnapping,4 aggravated indecent assault,5 sexual abuse of children,6
____________________________________________
1 Vanderslice’s guilty plea was negotiated as to the charges, but left open with
regard to sentencing.
2 18 Pa.C.S.A. § 3121(a)(1).
3 18 Pa.C.S.A. § 3123(a)(1).
4 18 Pa.C.S.A. § 2901(a)(3).
5 18 Pa.C.S.A. § 3125(a)(1).
6 18 Pa.C.S.A. § 6312(b)(1).
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endangering the welfare of a child (EWOC),7 and possession with intent to
deliver (PWID).8
The Commonwealth set forth the disturbing facts of this case, which
Vanderslice confirmed were true, at his guilty plea hearing:
[Vanderslice] is the biological father of the victim child. [The
victim’s] date of birth [] ma[de] her 16 years old at the time of
these events. On August 16, 2018[, Vanderslice] picked up the
victim child at work at a fast[-]food restaurant in Audubon,
Pennsylvania[,] at approximately 9:45 p.m. He drove the victim
to a portion of the Schuylkill River Trail, which is in East Pikeland
Township [] in Chester County, and told the victim, “[Y]ou are
either going to make tonight a good night or a bad night.”
[Vanderslice] then forced [the victim] out of the vehicle and they
walked down the trail. He forced [her] to snort or eat drugs, which
she described as looking like white rocks. [Vanderslice] then
forced her to take all of her clothes off and took pictures of her
naked body with his cell phone, telling her that if she did not
cooperate[,] he would kill her. [Vanderslice] told the victim child
that he was taking the pictures to sell them. [Vanderslice] started
touching the victim child’s genitals with his hands and she
attempted to run away, leaving her clothing behind. [Vanderslice]
caught up to her and dragged her back to the same vehicle by the
hair and continued to tell her that he would kill her if she was not
quiet.
[Vanderslice] then drove the victim child to a second location on
Zieber Road, [] in East Coventry Township[.] While inside the
vehicle at this location, [Vanderslice] sexually assaulted the victim
multiple times, penetrating her vagina with his fingers and his
penis[,] and forcing her to perform oral sex on him. [Vanderslice]
used the seatbelts to restrain [the victim] and keep her legs
apart[,] and[,] at one point[,] penetrated her with a hairbrush.
The victim child reported that [Vanderslice] used his cell phone
during the assaults to photograph or record what he was doing[,]
and that [Vanderslice] made statements to her including that she
____________________________________________
7 18 Pa.C.S.A. § 4303(a)(1).
8 35 P.S. § 780-113(a)(30).
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was [“]daddy’s little girl[,”] and that she would never need
another man[,] and they could run away together. During the
assaults, [Vanderslice] also told the victim child that he intended
to rent a hotel room and bring her younger brother so that he
could film the two children having some type of sexual contact
with each other. During these assaults, the victim child reported
that she repeatedly asked [Vanderslice] to stop but he would not.
The sexual assaults took place throughout the night and into the
early morning hours of August 17[,] 2018. At some point[,] the
car became stuck in the mud at that location, and during daylight[,
Vanderslice and the victim] left the vehicle and [] walk[ed] to
several locations in Spring City[,] and then Royersford[,] before
eventually getting a ride back to the victim child’s home in
Norristown, Pennsylvania.
When they returned to [the victim child’s home], [she] was able
to tell her guardian that she needed to speak to her privately
without [Vanderslice] knowing, and [the victim] disclosed what
[Vanderslice] had done. Norristown police were notified, and []
arrested [Vanderslice] at that location. The victim child was
transported to Abington Hospital for treatment and a forensic
sexual assault examination. The nurse who examined [the victim]
noted lacerations and scratches, as well as insect bites over most
of the victim child’s body. [The victim] also had multiple tears
and abrasions to her vaginal area. While at Abington Hospital, the
victim child’s urine tested positive for methamphetamine, and her
blood was later sent to NMS Laboratory for further testing and
tested positive for methamphetamine and amphetamines, as well
as caffeine.
At the time of his arrest, [Vanderslice]’s cell phone was
confiscated and later searched pursuant to a search warrant.
Investigators were able to [bypass] the password protecting the
phone and recovered photos and videos in the deleted files[.]
These photos include those taken of the victim child without her
clothing at the location of the first assault and videos of
[Vanderslice] sexually assaulting [the victim] in the car.
[Vanderslice] narrates the videos taken in the car[,] and speaks
as though addressing other unknown people. During the search
of the phone, investigators found [] several thousand[] still[-
]image files depicting child sexual exploitation, child erotica,
implied incest[,] and bondage. [T]hose numerous or several
thousand images were not of the victim child. The search also
revealed numerous sites—numerous visits to sites hosting content
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relating to young females and child sexual exploitation that allows
users to create accounts and upload still images and videos.
During the course of the investigation, detectives took the victim
child and her guardian to the area of the Schuylkill River Trail
[where the assault occurred,] and were able to recover the victim
child’s clothing and undergarments at the East Pikeland location.
[Vanderslice]’s car was recovered stuck in the mud at the East
Coventry location and was towed [] for processing[. N]umerous
items seen on the videos recovered from [Vanderslice]’s phone
were recovered or observed in that vehicle.
N.T. Guilty Plea Hearing, 7/18/19, at 3-7.
After his arrest, the Commonwealth charged Vanderslice with one count
each of kidnapping, rape by forcible compulsion, incest,9 unlawful restraint of
a minor,10 false imprisonment of a minor,11 EWOC, and corruption of minors;12
and, two counts each of IDSI, sexual abuse of a child, sexual assault,13
aggravated indecent assault, possession of child pornography,14
intimidation,15 criminal use of a communication facility,16 PWID, indecent
____________________________________________
9 18 Pa.C.S.A. § 4302(a).
10 18 Pa.C.S.A. § 2902(c)(1).
11 18 Pa.C.S.A. § 2903(c).
12 18 Pa.C.S.A. § 6301(a)(1)(ii).
13 18 Pa.C.S.A. § 3124.1.
14 18 Pa.C.S.A. § 6312(d).
15 18 Pa.C.S.A. § 4952(a)(1).
16 18 Pa.C.S.A. § 7512(a).
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assault by forcible compulsion,17 terroristic threats,18 simple assault,19 and
recklessly endangering another person (REAP).20
On June 4, 2019, Vanderslice filed a pre-trial motion to compel the
release of the cell phone video he recorded during the assault of the child
victim, requesting that he and his attorney have the opportunity to review the
footage and that defense mitigation expert and forensic psychologist, Dr. Elliot
Atkins, be permitted to view the footage “so [that Dr. Atkins could] make a
full and complete diagnosis of [Vanderslice],” and further in order to “assist
[Dr. Atkins] in writing a report for [the defense, and] to try to understand
what happened, [by] view[ing Vanderslice], essentially, [] in the commission
of these offenses.” N.T. Pre-Trial Motion Hearing, 7/9/19, at 6.
On July 17, 2019, the court granted Vanderslice’s motion in part,
ordering the Commonwealth to make the video and still-photo files available
to Vanderslice and his attorney in the Chester County Detective’s interview
room, during which audio and video recording of that room would be
suspended to preserve Vanderslice’s attorney-client privilege. The court
denied the motion to compel with regard to permitting Dr. Atkins to view any
video and/or still photos.
____________________________________________
17 18 Pa.C.S.A. § 3126(a)(2).
18 18 Pa.C.S.A. § 2706.
19 18 Pa.C.S.A. § 2701(a)(1).
20 18 Pa.C.S.A. § 2705.
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On July 18, 2019, Vanderslice tendered his guilty plea to the above-
stated charges and the court subsequently scheduled sentencing. On
December 13, 2019, at the beginning of the sentencing hearing, at the
Commonwealth’s request, the sentencing judge stated his intent to view, prior
to imposing sentence, one of the videos that Vanderslice recorded while
committing the acts to which he pled guilty. Vanderslice’s attorney moved for
a continuance to permit the court to experience a “cooling-off period” because
of the inflammatory nature of the evidence. The court denied the continuance
motion, viewed the video, and sentenced Vanderslice to forty-six to ninety-
four years’ incarceration.21 On December 19, 2019, Vanderslice filed a motion
to modify and reduce sentence, which the court denied that same day without
a hearing.
Vanderslice filed a timely notice of appeal on January 17, 2020. On
January 21, 2020, the trial court ordered Vanderslice to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Vanderslice failed to file the statement; therefore, by order dated June 8,
2020, this Court dismissed Vanderslice’s appeal. Upon petition by defense
counsel, this Court subsequently vacated our dismissal order, reinstated
Vanderslice’s appeal, and remanded the matter to the trial court for the proper
____________________________________________
21 The court sentenced Vanderslice to: 10-20 years’ imprisonment for
kidnapping; 10-20 years’ imprisonment for rape by forcible compulsion; 10-
20 years’ imprisonment for IDSI; 10-20 years’ imprisonment for filming and
photographing a sex act with a child; 4-8 years’ imprisonment for aggravated
indecent assault; 1-3 years’ imprisonment for EWOC; and 1-3 years’
imprisonment for PWID. All sentences are to run consecutively.
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filing of Vanderslice’s Rule 1925 statement. On remand, both Vanderslice and
the trial court have complied with Rule 1925.
On appeal, Vanderslice raises the following issues for our review:
1. Did the sentencing court err in not allowing Dr. Elliot Atkins to
review videos of the offense, especially a video of the offense
viewed by the court immediately prior to sentencing?
2. Did the sentencing court err in failing to grant a continuance
when it decided to view video depicting the graphic rape
immediately before sentencing?
3. Did the sentencing court err in considering the facts of
unrelated pending charges against [Vanderslice]?
4. Did the sentencing court err in not considering mitigating
factors presented at sentencing, such as[,] but no[t] limited
to[, Vanderslice]’s drug addiction and [] mental health
[conditions]?
5. Did the sentencing court abuse it[s] discretion in sentencing
[Vanderslice] to an aggregate sentence of forty-six [] years to
ninety-four [] years [of] confinement, imposing four statutory
maximum sentences consecutively in addition[] to other
consecutive sentences?
Appellant’s Brief, at 6 (reordered for ease of disposition; unnecessary
capitalization omitted).
In his first issue, Vanderslice challenges the court’s pre-trial ruling
precluding defense mitigation expert, Dr. Atkins, from viewing the videos
Vanderslice recorded of himself assaulting his victim. In explaining its ruling,
the court determined that: (1) only members of the “trial team” are permitted
to view videos that would otherwise constitute child pornography, since
dissemination and viewing of the material re-victimizes the victim; (2) Dr.
Atkins’ role in the matter as a sentencing mitigation expert did not meet the
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criteria for “trial team”; and (3) there existed a wealth of other material from
which Dr. Atkins could form an accurate opinion as to Vanderslice’s mental
health.
Vanderslice supports his claim by relying on the mandatory disclosure
rule set forth in Pa.R.Crim.P. 573(B)(1), as well as the exception to the
criminal prohibition on dissemination of child pornography set forth in 18
Pa.C.S.A. § 6312(f)(1). Vanderslice claims that the trial court abused its
discretion because: (1) Dr. Atkins was, in fact, a member of the trial team;
(2) permitting Dr. Atkins to view the material would efficiently move the
matter toward a non-trial resolution; (3) Dr. Atkins’ opinion, which was not
informed by the video the court had just viewed, “seemed to have incensed
the court which led to a manifestly unreasonable sentence[;]” and (4) the
error prejudiced Vanderslice insofar as “the trial court flatly rejected [Dr.]
Atkins’ conclusion, finding no mitigation[.]” See Appellant’s Brief, at 35. We
disagree.
On appeal, we will only reverse the trial court’s discovery rulings if we
discern an abuse of discretion. Commonwealth v. Mendez, 74 A.3d 256,
260 (Pa. Super. 2013) (quoting Commonwealth v. Boich, 982 A.2d 102,
109 (Pa. Super. 2009) (en banc)). “An abuse of discretion is not merely an
error of judgment, but is rather the overriding or misapplication of the law, or
the exercise of judgment that is manifestly unreasonable, or the result of bias,
prejudice, ill-will[,] or partiality, as shown by the evidence of record.” Id.(quoting Commonwealth v. Hanford, 937 A.2d 1094, 1098 (Pa. Super.
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2007)). We have previously found that it is the trial court’s responsibility to
determine whether prohibited material was captured in contemplation of a
legitimate purpose as defined in section 6312(f)(1). Commonwealth v.
Tiffany, 926 A.2d 503, 512 (Pa. Super. 2007) (citing Commonwealth v.
Savich, 716 A.2d 1251, 1256 (Pa. Super. 1987)).
In criminal cases, the Commonwealth must abide by the mandatory
disclosure rules set forth in Rule 573(B)(1), which states:
(B) Disclosure by the Commonwealth.
(1) Mandatory. In all court cases, on request by the defendant,
and subject to any protective order which the Commonwealth
might obtain under this rule, the Commonwealth shall disclose to
the defendant’s attorney all of the following requested items or
information, provided they are material to the instant case. The
Commonwealth shall, when applicable, permit the defendant’s
attorney to inspect and copy or photograph such items.
(a) Any evidence favorable to the accused that is material
either to guilt or to punishment, and is within the possession
or control of the attorney for the Commonwealth;
(b) any written confession or inculpatory statement, or the
substance of any oral confession or inculpatory statement,
and the identity of the person to whom the confession or
inculpatory statement was made that is in the possession or
control of the attorney for the Commonwealth;
* * *
(f) any tangible objects, including documents, photographs,
fingerprints, or other tangible evidence[.]
Pa.R.Crim.P. 573(B)(1).
Additionally, the exception to the criminal prohibition on dissemination
of child pornography, on which Vanderslice relies in making out his claim, is
set forth in 18 Pa.C.S.A. § 6312(f)(1). That subsection provides that criminal
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liability does not attach where “[a]ny [otherwise prohibited] material [] is
viewed, possessed, controlled, brought[,] or caused to be brought into this
Commonwealth, or presented, for a bona fide educational, scientific,
governmental or judicial purpose.” Id. (emphasis added).
In its supplemental Rule 1925 opinion, the court reasoned that Dr.
Atkins was not entitled to view the requested material because:
First and foremost, the dissemination of such graphic photos and
videos serves to re-victimize the victim. To have the victim re-
victimized for purposes of mitigation is a truly offensive
proposition. Although a defendant may have the right to view the
evidence against him, counsel for the Commonwealth expressed
that never, in her experience with the District Attorney’s Office,
has any such photo or video depicting child pornography been
shared with a civilian.[22] The [] court agreed, concluding that
there was a wealth of other evidence . . . for Dr. Atkins to consider
in his evaluation of [Vanderslice]’s mental health status[, and]
____________________________________________
22 At the hearing, the Assistant District Attorney stated:
The Commonwealth has, and me, personally, participated in
hundreds, if not over a thousand, child sexual abuse and adult
sexual assault prosecutions in this office and in my prior position,
many of which involved taking images of young children or videos
of young children. In not one of those cases have we ever
disseminated images to a civilian. In this case we would be
disseminating sexual child pornography, child rape, and it
revictimizes the victim. To have the victim be revictimized by
having this video watched for purposes of mitigation for the
defendant is an offensive concept. Certainly, if Dr. Atkins has to
limit his report saying, [“]I did not see the videos, had I seen
them[,] that may in some way affect my opinion[.”] I think that
is the more appropriate course of action here.
N.T. Pre-Trial Motion Hearing, 7/9/19, at 10-11.
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that [Dr. Atkins’] viewing of the videos and photos was simply not
necessary [for him] to develop an accurate assessment.
In cases of child pornography, only the trial team is permitted to
view the images and/or videos. [Although] the defense argued
that Dr. Atkins was a part of the trial team,[23] the Commonwealth
and the court disagreed. Dr. Atkins’ intention was to view the
videos and images for purposes of mitigation at the time of
sentencing. His testimony was not intended to be introduced at
the time of trial nor would it likely have been admissible.[24] Given
the foregoing discussion, the undersigned deemed the harm to the
victim in allowing Dr. Atkins to view the video and photographic
evidence was too great and the purpose of such viewing was
insufficiently compelling; therefore, in the court’s discretion, the
defense’s request was denied. This was not an error of law or
abuse of discretion.
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23 Defense counsel argued this point before the trial court at the pre-trial
hearing as follows: “I could certainly consider [Dr. Atkins] to be part of the
trial team. I mean, he functions in this context in the same way that an
investigator from my office would function, except the thing that he’s
investigating is my client.” N.T. Pre-Trial Motion Hearing, 7/9/19, at 17.
24 Defense counsel explained her theory of admissibility to the trial court as
follows:
I mean, candidly, your Honor, my desire is to steer this case, for
obvious reasons, into a non-trial disposition. So[,] one of the
ways by which I’m able to accomplish that is to have Dr. Atkins,
who has formed some relationship with Mr. Vanderslice,
evaluating his mental health[—i]f [Dr. Atkins] has had the benefit
of reviewing the same evidence that [Vanderslice] has had the
benefit of reviewing, [Dr. Atkins wi]ll be able to speak to
[Vanderslice] candidly, in a way, because I believe my client is
functioning somewhat under the notion that there would be a
mental health defense that would save him or protect him in this.
So[,] the ability to disabuse [Vanderslice] of that inaccurate
assessment will go a long way to making this be a non-trial
disposition, and Dr. Atkins can be very helpful in that regard as
well.
Id. at 18.
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Trial Court Opinion, 8/24/20, at 9.
Here, we find that the Commonwealth met the mandatory disclosure
requirements set forth in Rule 573 when it made Vanderslice’s requested video
available to him and his attorney in the Chester County detectives interview
room. See Pa.R.Crim.P. 573(B)(1)(f). Additionally, in light of the criminal
prohibitions contained in section 6312, we find that the trial court’s protective
orders—namely, (1) requiring the Commonwealth to make the subject matter
available, without passing physical copies, to Vanderslice and his attorney, in
a private room out of public view, and (2) ensuring that Vanderslice’s
attorney-client privilege was preserved while Vanderslice and his attorney
reviewed the material—were reasonable under the circumstances. See
Pa.R.Crim.P. 573(B)(1) (“In all court cases, on request by the defendant, and
subject to any protective order which the Commonwealth might obtain
under this rule, the Commonwealth shall disclose to the defendant’s
attorney all of the following requested items.”) (emphasis added). Nothing
in the text of Rule 573, or any caselaw cited by either party, or discovered by
this Court, suggests that the Commonwealth was required to turn over the
prohibited material to Dr. Atkins, as a sentencing mitigation expert, or any
defense investigator for that matter. See supra at n.23.
Moreover, we agree with the trial court’s assessment of the nature of
Vanderslice’s discovery request, that: (1) Dr. Atkins’ role in the matter as a
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sentencing mitigation expert did not meet the criteria for “trial team”;25
(2) there existed a wealth of other material from which Dr. Atkins could form
an accurate opinion as to Vanderslice’s mental health;26 and (3) permitting
Dr. Atkins to view the material would have been a violation of two of the
criminal prohibitions set forth in section 6312, where such dissemination and
____________________________________________
25 Although the trial court emphasized the term “trial team” when discerning
which individuals were permitted to view the material, see Trial Court Opinion,
8/24/20, at 9, we have not discovered that term used in the relevant statutes
or case law. Nevertheless, the record is devoid of any notice of a defense of
insanity or mental infirmity and notice of expert evidence as to mental
condition, as is required pursuant to Pa.R.Crim.P. 568. See also Pa.R.Crim.P.
579. As such, Vanderslice would not have been permitted to place insanity in
issue at trial. See Commonwealth v. Sasse, 921 A.2d 1229, 1234 (Pa.
Super. 2007) (“In order to present the defense of insanity or mental infirmity
at trial, Rule 568(A)(1) requires a defendant to file a notice of insanity or
mental infirmity defense with the trial court and serve same on the
Commonwealth.”) (footnote omitted). Therefore, any evidence of
Vanderslice’s mental illness would have been irrelevant for purposes of a trial
in this matter. See Commonwealth v. Andrews, 158 A.3d 1260, 1264 (Pa.
Super. 2017) (citing Commonwealth v. Hatfield, 579 A.2d 945, 947 (Pa.
Super. 1990)) (evidence of mental illness is irrelevant where defendant does
not invoke insanity defense).
26 We agree with the Commonwealth, see Appellee’s Brief, at 15, that Dr.
Atkins had ample evidence at his disposal from which to reach a determination
regarding Vanderslice’s mental health, without viewing the video or still
photos, including: the victim’s statement, photographs of Vanderslice’s
vehicle, photographs of the scene, photographs of the victim’s clothing found
near the scene, medical records of the victim, cell phone records (including
internet searches) from Vanderslice’s phone, Vanderslice’s admission that he
recorded the rape with the intent to sell it for money, Vanderslice’s guilty plea
to very specific and detailed facts of the rape, Vanderslice’s history of
psychiatric treatment, and Dr. Atkins’ interview of Vanderslice, which totaled
over nine hours and occurred over multiple visits.
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viewing of prohibited material27 would only serve to re-victimize the victim.
Therefore, we discern no abuse of discretion under these circumstances. See
Mendez, supra; see also 18 Pa.C.S.A. §§ 6312(c)-(d).
Next, Vanderslice challenges the court’s denial of his continuance
request, which would have permitted the court to experience a “cooling-off
period” to “take the matter under advisement [and] enable reasoned
reflection” after viewing the inflammatory evidence and prior to sentencing
Vanderslice. See Appellant’s Brief, at 25-29. Vanderslice argues that his
sentence, which the court imposed immediately after viewing the
inflammatory video, could only be the result of the court’s “passion and
prejudice,” because of the video’s “graphic and disturbing” nature, which
“naturally inspired sympathy for the child victim” and “bias against
Vanderslice.” Id. at 28. Vanderslice claims that the court’s lengthy sentence
evidences its bias against him because the Commonwealth only requested a
sentence of thirty-eight to seventy-six years’ incarceration, yet the court
imposed a sentence of forty-six to ninety-four years’ incarceration. Id.
Vanderslice reasons further that his sentence was “practically”
indistinguishable from the maximum sentence he could receive, which was
fifty-six to one-hundred-and-twelve years’ incarceration. Id. at 29.
____________________________________________
27 The trial court was well within its discretion to determine that Vanderslice
did not capture the prohibited material in contemplation of a legitimate
purpose, as defined in section 6312(f)(1), due to the nature of Vanderslice’s
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Our standard of review for a challenge to the trial court’s grant or denial
of a continuance request is well-settled:
Appellate review of a trial court’s continuance decision is
deferential. The grant or denial of a motion for a continuance is
within the sound discretion of the trial court and will be reversed
only upon a showing of an abuse of discretion. As [the
Pennsylvania Supreme Court has] consistently stated, an abuse
of discretion is not merely an error of judgment. Rather,
discretion is abused when the law is overridden or misapplied, or
the judgment exercised is manifestly unreasonable, or the result
of partiality, prejudice, bias, or ill-will, as shown by the evidence
or the record.
Commonwealth v. Brooks, 104, A.3d 466, 469 (Pa. 2014) (internal
citations, quotation marks, and ellipsis omitted). Further, this court has stated
that:
the trial court exceeds the bounds of its discretion when it denies
a continuance on the basis of an unreasonable and arbitrary
insistence upon expeditiousness in the face of a justifiable request
for delay. Accordingly, we must examine the reasons presented
to the trial court for requesting the continuance, as well as the
trial court’s reasons for denying the request.
Commonwealth v. Norton, 144 A.3d 139, 143 (Pa. Super. 2016).
Additionally, the appellant must establish a specific prejudice suffered as a
result of the trial court’s denial of the motion for continuance, “by showing
specifically in what manner [the appellant] was unable to prepare or how [the
appellant] would have prepared differently [if] given more time.”
Commonwealth v. Matthews, 227 A.3d 1, 9 (Pa. Super. 2020) (quoting
Commonwealth v. Antidormi, 84 A.3d 736, 745 (Pa. Super. 2014))
(internal citation and quotation marks omitted).
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Here, the trial court addressed Vanderslice’s request for continuance as
follows:
Obviously, [counsel], you know that I have read a volume of
material, both from Dr. [Bruce] Mapes for the Sexual Offenders
[Assessment] Board [(SOAB)], from Dr. Atkins, I’ve read your
[defense sentencing] memorand[a], I’ve read [the
Commonwealth’s sentencing] memorandum, I’ve read all the
letters that you’ve had attached to yours,[28] I’ve read the pre[-
]sentence investigation [report]. So[,] while I have to be honest
and say that I have not completely and totally made my mind up,
I have a framework in my head, and I do want to listen to what
everyone has to say here today, but we are going to proceed to
sentencing [without granting the defense continuance request].
N.T. Sentencing Hearing, 12/13/19, at 8-9.
Based on our review of the record in this case, there was no abuse of
discretion in the trial court’s denial of Vanderslice’s continuance request. See
Brooks, supra. First, we note that Vanderslice has cited no case law in
support of his argument that the trial court abused its discretion. See
Pa.R.A.P. 2119. Second, we discern no prejudice suffered by Vanderslice
given that he has failed to identify, specifically, in what manner, he, and not
the court, was unable to prepare or how he would have prepared
differently had the continuance been granted. See Matthews, supra.
Moreover, the court stated that it had already reviewed all submitted materials
related to the sentencing proceeding scheduled for that day, including the pre-
sentence report. See N.T. Sentencing Hearing, 12/13/19, at 8. Under the
____________________________________________
28 The court identified at sentencing six letters that it reviewed that were
attached to Vanderslice’s sentencing memorandum. See N.T. Sentencing
Hearing, 12/13/19, at 51-53.
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circumstances of this case, we disagree with Vanderslice that the court’s
sentence could only be the product of inflamed and biased passion, and we
conclude that it was not the result of the trial court’s unreasonable and
arbitrary insistence upon expeditiousness. See Norton, supra; see also
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (“Where pre-
sentence reports exist, [the appellate courts] 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.”). Indeed, the sentencing court in the case sub judice was
already acutely aware of the inflammatory facts prior to viewing the video in
camera, and, as is the case with nearly all sentencing proceedings, the judge
simply evaluated the nature of the evidence and the crimes at issue prior to
imposing sentence.29 See Commonwealth v. Walls, 926 A.2d 957, 962
(Pa. 2007) (citing 42 Pa.C.S.A. § 9721(b)) (sentencing court required to
impose individualized sentence, that is consistent with: (1) protection of
public, (2) gravity of offense as it relates to impact on life of victim and on
community, and (3) rehabilitative needs of defendant); see also
Commonwealth v. Penrod, 578 A.2d 486, 491-92 (Pa. Super. 1990) (citing
42 Pa.C.S.A. § 9721) (“[A]t the discretion of the trial court, the
____________________________________________
29 Although it was the sentencing judge’s intention to only watch one video in
camera, the court explained that it viewed two of the videos that were
recorded because “[o]ne kept going[,] the screen [went] to black and there
was no sound, and so the second one was shown. There was commentary by
Mr. Vanderslice and questions answered by the victim. It was maybe a minute
and a half long.” N.T. Sentencing Hearing, 12/13/19, at 10.
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Commonwealth may properly present live testimony of the victim and/or the
victim’s family or friends as well as other evidence such as photographs at
sentencing on the relevant sentencing issue of “‘the gravity of the offense
as it relates to the impact on the life of the victim and on the community.’”)
(emphasis in bold added, emphasis in italics in original). We conclude that,
simply because of the gravity of Vanderslice’s crimes, there is no reason to
believe that the court could not preside fairly and impartially. See
Commonwealth v. Bernal, 200 A.3d 995, 999 (Pa. Super. 2018)
(Pennsylvania Commonwealth judges are presumed “honorable, fair, and
competent”). Moreover, the same can be said for the fact that the trial court
imposed consecutive sentences, which aggregated to a term of years greater
than that requested by the Commonwealth. See Commonwealth v. Norris,
375 A.2d 122, 123-24 (Pa. Super. 1977) (imposition of sentence rests solely
within broad discretion of sentencing judge; appellate court will not find abuse
of that broad discretion provided sentence is within statutory limits, unless
sentence imposed is so manifestly excessive as to inflict too severe a
punishment; sentencing judge has discretion to impose consecutive sentences
for multiple convictions). In sum, there was no abuse of discretion in the trial
court’s denial of Vanderslice’s continuance request. To the extent that
Vanderslice’s claim implicates a challenge to the discretionary aspects of his
sentence, we address it below.
Vanderslice’s final three claims on appeal implicate the discretionary
aspects of his sentence. Appellants are not entitled to review of the
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discretionary aspects of their sentence as of right. See Commonwealth v.
McAfee, 849 A.2d 270, 274 (Pa. Super. 2004). Rather, our jurisdiction must
be invoked via the following four-part test:
(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, 533-34 (Pa. Super. 2006) (quoting
Commonwealth v. Hyland, 875 A.2d 1183, 1183 (Pa. Super. 2005)). The
determination of whether there is a substantial question is made on a case-
by-case basis, see Commonwealth v. Paul, 925 A.2d 825, 828 (Pa. Super.
2007), and this Court will grant the appeal only when the appellant advances
a colorable argument that the sentencing judge’s actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or (2) contrary
to the fundamental norms which underlie the sentencing process.
Commonwealth v. Sierra, 752 A.2d 910, 912-13 (Pa. Super. 2000). “We
cannot look beyond the statement of questions presented and the prefatory
Rule 2119(f) statement to determine whether a substantial question exists.”
Commonwealth v. Radecki, 180 A.3d 441, 468 (Pa. Super. 2018) (brackets
omitted).
Here, Vanderslice filed a post-sentence motion for reconsideration of
sentence, as well as a timely notice of appeal to this Court. He has also
included in his brief a concise statement of reasons relied upon for allowance
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of appeal with respect to the discretionary aspects of his sentence pursuant
to Rule 2119(f). See Appellant’s Brief, at 14-15. Accordingly, we must now
determine whether Vanderslice has raised a substantial question that his
sentence is not appropriate under the Sentencing Code or is contrary to the
norms which underlie the sentencing process.
In his Rule 2119(f) statement, Vanderslice claims that the trial court:
(1) relied on impermissible factors when imposing the sentence; (2) viewed
the “inflammatory graphic video prior to imposing sentence[, which] would
have undoubtedly and understandably inspired bias and prejudice towards
[Vanderslice],” Appellant’s Brief, at 15; and (3) did not consider Vanderslice’s
mitigating history or circumstances.
We have previously found that a sentencing court’s consideration of
impermissible sentencing factors raises a substantial question.
Commonwealth v. Macias, 968 A.2d 773, 776 (Pa. Super. 2009); see also
Commonwealth v. Allen, 24 A.3d 1058, 1064-65 (Pa. Super. 2011) (“[A]
claim that a sentence is excessive because the trial court relied on an
impermissible factor raises a substantial question.”). Additionally, a claim that
a court imposed a sentence outside the guidelines while failing to consider
mitigating circumstances has been found to raise a substantial question. See
Commonwealth v. Swope, 123 A.3d 333, 340 (Pa. 2015) (holding claim of
excessiveness coupled with claim trial court failed to consider rehabilitative
needs and mitigating factors presents substantial question); Commonwealth
v. Samuel, 102 A.3d 1001, 1007 (Pa. Super. 2014) (same). Conversely, as
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described above, we have already found that it is, in fact, a norm of the
sentencing process for the sentencing court to review trial evidence prior to
imposing a sentence, see supra at 17-18, and therefore, we conclude that a
claim that the court did so fails to raise a substantial question for our review.
See Sierra, supra. Also, with regard to challenges to the imposition of
consecutive sentences, we have previously stated:
[I]mposition of consecutive rather than concurrent sentences lies
within the sound discretion of the sentencing court. Long[-
]standing precedent of this Court recognizes that 42 Pa.C.S.A. §
9721 affords the sentencing court discretion to impose its
sentence concurrently or consecutively to other sentences being
imposed at the same time or to sentences already imposed. A
challenge to the imposition of consecutive rather than
concurrent sentences does not present a substantial
question regarding the discretionary aspects of sentence.
We see no reason why a defendant should be afforded a volume
discount for his crimes by having all sentences run concurrently.
However, we have recognized that a sentence can be so
manifestly excessive in extreme circumstances that it may
create a substantial question. When determining whether a
substantial question has been raised, we have focused upon
whether the decision to sentence consecutively raises the
aggregate sentence to, what appears upon its face to be, an
excessive level in light of the criminal conduct in this case.
Commonwealth v. Zirkle, 107 A.3d 127 (Pa. Super. 2014) (emphasis
added; citations, quotations, brackets omitted).
Here, Vanderslice pled guilty to a fraction of the crimes with which he
was initially charged and that were supported by the factual recitation placed
into the record by the Commonwealth at the plea hearing. Additionally, we
note that all seven of the crimes that Vanderslice pled guilty to were graded
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as felonies, and the majority of those were graded as felonies of the first
degree. In consideration of these circumstances, and in light of the criminal
conduct at issue, we conclude that the trial court’s aggregate sentence was
not so manifestly excessive that it raises a substantial question. See Zirkle,
supra. Thus, we will only address the merits of Vanderslice’s discretionary
aspects of sentencing challenges regarding the court’s consideration of
impermissible factors, as well as its failure to consider Vanderslice’s mitigating
circumstances.
First, Vanderslice argues that the trial court impermissibly relied on
pending criminal charges and unproven criminal conduct. Specifically,
Vanderslice contends that:
the trial court considered [his] pattern of violence towards women
in another pending criminal case and a prior protection from abuse
order [(PFA)]. The court discussed how the instant case was far
from an isolated incident[,] drawing the similarities between the
case sub judice and the other pending criminal case involving []
Kelsea Manz, [who is Vanderslice]’s ex-paramour.
Appellant’s Brief, at 18. Vanderslice relies on our Supreme Court’s decision in
Commonwealth v. Bethea, 379 A.2d 102 (Pa. 1977), and our decision in
Commonwealth v. Stufflet, 469 A.2d 240 (Pa. Super. 1983), for the
proposition that, “if it reasonably appears from a review of the entire record
that the sentencing court may have relied in whole or in part upon an
impermissible consideration, the sentence is invalid and must be vacated.”
Appellant’s Brief, at 15.
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Second, Vanderslice claims that the court failed to consider his
mitigating evidence that: he had no relationship with his biological father
until he became an adult; his stepfather was killed with his son in a tragic
motorcycle accident; he recalled finding his sister dead in her crib after she
died of meningitis; he became a father at fourteen years old, his girlfriend was
eighteen years old at the time, and the victim in this case is the child of that
union; he was a special education student who struggled with school and
eventually dropped out in the ninth grade at the age of sixteen; he suffered
from Persistent Depressive Disorder, Generalized Anxiety Disorder, Stimulant
Use Disorder, Opiate Use Disorder, and Borderline Personality Disorder; he
attempted suicide by hanging (among other attempts) and was involuntarily
committed to Norristown State Hospital, where he was prescribed anti-
psychotic and anti-depressive medications, and later was re-hospitalized for
suicidality and psychotic symptoms at the Horsham Clinic; and “the instant
offense took place approximately a week after [Vanderslice] signed a 72-hour
notice to be released from his (second) inpatient stay at the Horsham Clinic.”
Appellant’s Brief, at 53.
Our standard of review is as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. To constitute an abuse of
discretion, the sentence imposed must either exceed the statutory
limits or be manifestly excessive. 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
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judgment for reasons of partiality, prejudice, bias[,] or ill[-]will,
or arrived at a manifestly unreasonable decision.
Commonwealth v. Perry, 883 A.2d 599, 602 (Pa. Super. 2005) (citing
Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003)).
A sentencing judge has broad discretion in determining a
reasonable penalty, and appellate courts afford the sentencing
court great deference, as it is the sentencing court that is in the
best position to “view the defendant’s character, displays of
remorse, defiance, or indifference, and the overall effect and
nature of the crime.”
Commonwealth v. Edwards, 194 A.3d 625, 637 (Pa. Super. 2018) (quoting
Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007)).
Moreover, this Court’s review of the discretionary aspects of a sentence
is governed by 42 Pa.C.S.A. §§ 9781(c) and (d). Commonwealth v. Dodge,
77 A.3d 1263, 1274 (Pa. Super. 2013). Section 9781(c) provides, in relevant
part:
(c) Determination on appeal.—The appellate court shall vacate the
sentence and remand the case to the sentencing court with
instructions if it finds:
* * *
(3) the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.
In all other cases the appellate court shall affirm the sentence
imposed by the sentencing court.
42 Pa.C.S.A. § 9781(c)(3). Subsection 9781(d) requires that, in reviewing
the record, we consider:
(1) The nature and circumstances of the offense and the history
and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
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(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S.A. § 9781(d).
We have previously found that, “[i]t is not enough that a trial court
simply entertained impermissible evidence in its deliberations. A court is
‘ordinarily presumed to be capable of identifying and properly disregarding all
but the most prejudicial and inflammatory evidence.’” Commonwealth v.
Smithton, 631 A.2d 1053, 1057 (Pa. Super. 1993) (quoting Penrod, supra
at 491) (emphasis in original). “Thus, a sentence must be vacated only where
‘it reasonably appears from the record that the trial court relied in whole or in
part upon such an impermissible factor.’” Id. (quoting Bethea, supra at 107)
(emphasis in original; brackets omitted).
Moreover, “[a]lthough a sentencing judge must state his or her reasons
for the sentence imposed, a discourse on the court’s sentencing philosophy is
not required[; however, t]he court must explain any deviation from the
sentencing guidelines.” Commonwealth v. Simpson, 829 A.2d 334, 338
(Pa. Super. 2003) (internal citations, quotation marks, and ellipsis omitted).
Additionally, “[w]here the court’s sentencing colloquy shows consideration of
the defendant’s circumstances, prior criminal record, personal characteristics
and rehabilitative potential, and the record indicates that the court had the
benefit of the pre[-]sentence report, an adequate statement of the reasons
for sentence imposed has been given.” Commonwealth v. Brown, 741 A.2d
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726, 735 (Pa. Super. 1999) (citations and quotation marks omitted). See
also Devers, supra.
Prior to imposing sentence on Vanderslice, the court stated its reasons
in support of the sentence for the record:
Let me just let you know that, obviously, I’ve considered your
remarks. I’ve actually made a few notes here. I want to tell you
the other material that I’ve considered, I think I’ve reviewed this
in the beginning, but we’ll make sure that it’s clear: I reviewed
the Commonwealth’s Sentencing Memorandum; I received a
report from Dr. Bruce Mapes, who is both a member of [SOAB]
and was the reviewer of this defendant []; I reviewed the Chester
County Adult Probation and Parole Department Pre[-]sentence
Investigation [Report (PSI)], [which] has some attachments[]
includ[ing] an affidavit of probable cause for this crime, criminal
history information, a report from a Randee[] Brant[] who is an
investigator with [SOAB], and in that[ history, Brant] recounted
an interview with Darcy Carfagno, who is [Vanderslice]’s mother;
I reviewed the employment information; the affidavit of probable
cause; I reviewed all of the defendant’s [sentencing]
memorandum, including the various letters that were marked as
[] D-2 through D-6; and I reviewed Dr. Atkins’ report which
was attached to the [sentencing] memo[random] as [“]Exhibit
A[”]. I have listened very carefully to Dr. Atkins’ testimony.
I took copious notes. I’ve also listened to the testimony today
from Corporal Holloway.
I’m going to discuss, first, what I perceive to be aggravating
factors, and they are in my notes here. The most aggravating
factor is that the victim is the defendant’s biological daughter who
was 16 at the time of this offense. It is hard for me to fathom the
amount of evil or the level of monstrosity that would cause a
father to commit these crimes on his own daughter. It’s not to
minimize that these crimes should not be committed on anyone.
That, in and of itself, in the opinion of this [c]ourt, should take
each and every one of these crimes well beyond the aggravation
factors, the aggravation range.
The defendant claims that he does not remember the acts
which have been [a]scribed to him. Whether it’s due to a
psychotic episode, which I kind of use his words and certainly
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the words that Dr. Atkins used, or drug use during an
attack, and [Vanderslice] asks me to accept that as true and Dr.
Atkins indicates why he did accept it as true. I cannot. The
reason I consider this an aggravating factor is that he
began a course of conduct well before this day, researched
on the Internet child pornography, father/daughter incest
pornography, and was eventually able to find some website
which would pay him if he could obtain these. I note in the
Commonwealth’s sentencing memorandum there’s information
that [Vanderslice] told family and friends that he had hoped to get
a lower plea, certainly simply because the victim wouldn’t want to
testify, and that he would not accept a negotiated plea deal, not
that he had to, but he didn’t want to do so because it’s not as bad
as killing someone. On every level of humanity, what you did to
your daughter was worse than if had you killed her[. F]or 24 hours
a day, 365 days a year for the rest of this young lady’s life[, s]he
will never get this out of her mind.
I don’t know whether you have remorse. You have just
expressed that you are sorry. I have difficulty in
determining whether you’re sorry you got caught, whether
you’re sorry you were arrested, or whether you’re sorry
about the potential sentence, but I accept it at face value.
You do have no prior record score. You did have a PFA
against you in Montgomery County in which the allegation
at that time was, and I accept it as an allegation at this
point, that you sexually assaulted [Ms. Manz] at gunpoint.
[] Later you were charged with contempt for violating that
order. And then you were sentenced to some period of
incarceration for that contempt. As I’m sure [defense
counsel] has advised you, you’re on my trial list at the moment
for another case involving [Ms.] Manz, these facts that are
allegations. And I don’t accept them as pr[oven], but I cite
them here on the record to refute the position Mr.
Vanderslice has taken that this was an isolated incident.
As I understand the allegations in that case, you got into an
argument with a woman, you drove her and a child around, when
the woman became frightened and the car stopped, she tried to
break free and ran. The allegations, not proven, are that you
chased her down, you tackled her, you threw her over your
shoulder, pulled her back into the vehicle, and then sped away
with her four year old child inside. I will recount later the
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similarities of facts that I found both from what you accepted in
your guilty plea and what happened in this case.
You blame your drug use on your mental health condition.
I don’t see how that’s a mitigating factor at all. There are
many, many people known to everyone in this room who suffer
from ADHD, many who suffer from depression, may have other
mental health issues that did not take street drugs, did not kidnap,
torture[,] and rape their daughter. These indignities perpetrated
upon this young woman are [] aggravating factors in and of
themselves. In committing these crimes[,] you took advantage
of your daughter’s trust, of your daughter’s hope, of your
daughter’s dream for some relationship with her biological father.
[Police discovered] images [] on your phone regarding child sexual
exploitation, child erotica, implied incest, bondage, [and]
sadomasochism[.] And I think they require[,] not only the
consideration of some of the enhancements and requests for
enhancements, but certainly that those enhancements under the
[Sentencing] Code could ever contemplate such a horrible crime,
it might have been something like this. So[,] whether it’s your
mental health issues or your use of drugs, you obviously
cannot control yourself. You have exhibited, in the PFA
allegations, violence towards women; the n[e]w assault
case, it reveals approach of violence towards women; and
then in this case, first you get her in the car, then you supply her
and force-feed her methamphetamines, strip her of her clothes,
when she fights back and attempts to escape, you chase her
down, you drag her back to the car through the woods by her hair,
and you continue these assaults. You used seatbelts to physically
restrain her from any further [escape] attempts. You
photographed and you videotaped the four sexual acts with
the intent of selling these images for your own financial
gain. In and of itself, these would inflict such pain and
degradation upon this young woman that they are clearly
evidence of an aggravating factor.
And then you tell her that you plan to include your four-
year-old son in future videos. Once you do, and you’re
eventually caught, you brag about it, “I just put her through
a night of hell.” Aren't you special? You planned these crimes
for a period of time before committing the assault. You
spent time on the websites depicting the type of abuse you forced
on the victim. When you heard and learned that the[ websites]
paid for images, you planned to create the same in order to sell
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them for financial gain. And you manipulated this young woman
into believing that you wanted to spend time with her. All you
wanted to do was commit crimes upon her. And as to the[
assertion that] this was a one-time isolated incident, you warned
[Ms.] Manz, your ex-paramour, that you planned on doing
something so horrific that it would permanently turn her
against you. All of these crimes are based on separate and
distinct criminal acts.
I’m allowed to consider the impact and the effect on the
victim and the victim’s statement. Yes, you pled guilty and
prevented her from coming forward [and] having to testify. I’m
not going to conclude why you pled guilty. [I]t seems unlikely
that you did that thinking of your daughter, and perhaps [the
Commonwealth’s theory] is correct, you thought only of yourself.
But, none[]the[]less, it is a fact that you pled guilty and
prevented any testimony at trial.
The impact on this young woman, the memories, reliving the
assault, living with the knowledge that the assault has been
recorded and has now had to be viewed by strangers, whether
they were police officers, detectives, attorneys, or even the
[c]ourt. This young woman deserves to know that she will be
safe. And while she may have the many demons which she will
have to deal with throughout her life, the circumstances
surrounding this crime are so aggravating that the one demon she
should not have to deal with is the worry that she will need to
interact with you again.
I want to explain to counsel and to you that the Superior Court
has expressed concern to sentencing judges that we should be
reluctant to run sentences concurrently by way of habit or
tradition because criminals should not receive a volume
discount for their separate criminal acts. The support for the
imposition of consecutive sentences on multiple crimes [is] the
case of Commonwealth v[.] Mouzon[.30 I]n that particular
case[,] a defendant’s unwillingness to come forward with remorse
and [] the planning of those particular crimes were with an intent
to terrorize. In that case it was robberies. Here[,] terror is almost
too soft a word.
____________________________________________
30 See Commonwealth v. Mouzon, 812 A.2d 617 (Pa. 2002).
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In this case the defendant repeatedly raped this child, filmed,
photographed multiple sexual assaults, and yet[,] you have pled
guilty only to one count. In [Commonwealth v.
Wojciechowski,31] the Superior Court opined that it’s
unthinkable that a woman, once having been raped, is in the
position where her attacker can abuse her in any other fashion
without further sanctions from the [c]ourt for a separate and
distinct crime. He cannot escape criminal liability merely because
he chose to subject the victim to every possible kind of aggressive,
physically abusive[,] sexual behavior in his depraved arsenal. And
while that case[] may well apply here[,] I’m well aware of the
Commonwealth’s recommendations. And, in sum, they ask for a
sentence of aggravated and a term for aggravated in the terms of
38 to 76 years. And I’m aware that the defense has raised
a number of issues which it believes to be mitigating
factors, such as the untreated mental health disorders, et
cetera. The defense has argued to us that there’s a low
likelihood of recidivism. There will be as a result of this
sentence.
I’ve considered these factors that the defendant[ has]
raised, and I do not find them in the least bit persuasive. I
have difficulty ascribing credibility that the defendant has
no memory of the events. He went to great lengths to plan
this vicious attack on his daughter and his behavior during
the course of the attack, moving the car, moving it to a straight
spot, walking through the woods, walking down the path, finding
the other house, et cetera, indicates a level of planning and detail.
And as I noted earlier, while they are mere allegations in the
other case, this attack does not appear to be an isolated
incident in terms of approach towards women, similar,
albeit unproven charges at this point, that he trapped a
woman in a car, when she escaped he pursued her and violently
put her back in the vehicle. While in Miss Manz’s case[,] it clearly
is not as horrific as [in] this case, it reveals a pattern, a pattern
from which this young woman, her family, and the
Commonwealth of Pennsylvania needs to be protected.
Of particular note[,] as to this issue of protection, I read through
each of the interviews and the letters that were provided by the
defendant, Mrs. Carfagno in her interview that’s recounted[,] has
difficulty expressing belief that her son did this; and the letter that
____________________________________________
31 See Commonwealth v. Wojciechowski, 426 A.2d 674 (Pa. Super. 1981).
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was included from Ruth Jalkowski marked as Exhibit D-6, chillingly
writes: “I have not been able to match any of this with Shawn.
It just isn’t in his character. He may have pled guilty, but he didn’t
do it.” I read that over and over, and it was everything I could
do, Mr. Vanderslice, not to become physically ill.
N.T. Sentencing Hearing, 12/13/19, at 103-12 (emphasis added; unnecessary
capitalization omitted).
In its supplemental Rule 1925(a) opinion, the trial court explained its
sentence and offered the following analysis:
Upon review of the sentencing transcript, the undersigned
acknowledges making reference to these unproven allegations
asserted in the pending case. However, it must also be made
clear that the undersigned acknowledged that the facts were just
that—allegations—and they were considered as such. The
sentencing court raised the allegations, part and parcel, to
demonstrate that the acts to which [Vanderslice] pleaded guilty
were not the product of an isolated incident as [he] claimed, but[,
when] combined with the PFA violation in Montgomery County,
the allegations of the pending charges, and the facts of the instant
case, [Vanderslice] had demonstrated a pattern of violence toward
women. This pattern could have been discerned without reference
to the pending allegations.
Because there were so many other factors that the sentencing
court considered when imposing the lengthy period of
incarceration, the allegations related to the pending case
against [Vanderslice] were entertained, but not relied
upon by the sentencing court. As a result, reference to such
allegations was not an error of law and, therefore, the sentence
need not be vacated.
Trial Court Opinion, 8/24/20, at 8 (emphasis added).
Here, upon evaluating the issue of the sentencing court’s consideration
of impermissible evidence, we agree with the trial court’s analysis. Our review
of the record reveals that the sentencing court merely entertained the
unproven pending charges, in connection with the previous PFA and contempt
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thereof, as evidence of a pattern of violence against women, see N.T.
Sentencing Hearing 12/13/19, at 106, which refuted Vanderslice’s and Dr.
Atkins’ claim that Vanderslice’s crimes were an isolated event. See
Smithton, supra. We conclude that the court’s singular comment that the
facts of Ms. Manz’s case further established “a pattern of violence against
women” from which the victim needed to be protected, see N.T. Sentencing
Hearing, 12/13/19, at 112, referenced earlier discussion of that same pattern,
which was made within the context of pertinent and permissible evidence, i.e.,
Vanderslice’s previous sentence of confinement for violating the terms of a
PFA involving Ms. Manz. We find that because the court did not rely on
the impermissible evidence—i.e., the pending unproven charges—as a
basis for aggravation or enhancement of sentence, or for the purpose of
discerning that the victim required protection from Vanderslice, see id. at
109-110, the court did not abuse its discretion in entertaining the
unproven charges against him. See also Commonwealth v. Petras, 534
A.2d 483, 488 (Pa. Super. 1987) (“[S]o long as the sentencing court is aware
that no arrest or conviction resulted, such information may properly be
considered by a sentencing court even where appellant has not opened the
door. ‘Prior connections, of whatever nature, with law enforcement authorities
are unquestionably among the circumstances to be scrutinized’ in determining
the appropriate sentence.”).
Finally, our review of the sentencing transcript reveals that, contrary to
Vanderslice’s claim, the sentencing court did consider his mitigating
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circumstances, yet found them to be not credible or unconvincing. We find
that his claim that the court gave no real consideration to his mitigating factors
is actually a request for this Court to re-weigh the sentencing factors, which
we may not do. See Commonwealth v. Bricker, 41 A.3d 872, 876 (Pa.
Super. 2012) (citing Macias, supra.) (“The weighing of factors under 42
Pa.C.S.[A.] § 9721(b) is exclusively for the sentencing court, and an appellate
court could not substitute its own weighing of those factors.”) (ellipsis and
brackets omitted). Additionally, the sentencing court stated that it read
Vanderslice’s PSI prior to the hearing. Id. at 8. Therefore, we may presume
that the sentencing judge was aware of and weighed Vanderslice’s mitigating
circumstances at sentencing. See Devers, supra.
Consequently, Vanderslice has not shown that his sentence is
unreasonable; thus, his discretionary aspects of sentencing claims fail. See
42 Pa.C.S.A. § 9781(c)(3).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/21
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