Com. v. Lieberman, M. ( 2021 )

J-A19016-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW LIEBERMAN :
:
Appellant : No. 2023 EDA 2020
Appeal from the Judgment of Sentence Entered June 2, 2020
In the Court of Common Pleas of Northampton County
Criminal Division at No: CP-48-CR-0000926-2019
BEFORE: DUBOW, J., MURRAY, J., and COLINS, J.*
MEMORANDUM BY MURRAY, J.: FILED SEPTEMBER 16, 2021
Matthew Lieberman (Appellant) appeals from the judgment of sentence
imposed after he pled guilty to possessing 900 videos and images of child
pornography.1 Upon review, we affirm.
The trial court recited the factual and procedural history as follows:
On August 29, 2018, the National Center for Missing and
Exploited Children received information that a user with the
username “Matthew Lieberman” had been uploading digital files
of child pornography. The IP address that uploaded these files
was the same as the one assigned to [Appellant’s] residence at
1920 Carriage Knoll Drive, Bethlehem, Northampton County,
Pennsylvania. On January 9, 2019, a search warrant was served
on [Appellant’s] residence. Numerous electronic devices were
seized and were subject to analysis, revealing a total of 900 items
of child pornography, which included 400 videos and 500 images,
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 6312(d); see also N.T., 7/19/19, at 22.
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many of which depicted sexual penetration of children as young
as three years of age.
On July 19, 2019, [Appellant] pled guilty to [] possession of
child pornography[.] This crime was graded as a felony of the
second degree, punishable by up to ten years in prison and a
$25,000 fine. The standard range sentence was thirty months to
forty-two months as a minimum sentence in a state correctional
institution.
* * *
The [c]ourt sentenced [Appellant] to a term of
imprisonment for a minimum period of thirty months to a
maximum period of sixty months in a state correctional institution,
as well as a consecutive term of twelve months of probation.
Commencement of the sentence was delayed due to concerns with
Covid-19 and [Appellant] was to be under house arrest until his
sentence commenced on September 10, 2020. …
[Appellant] filed a post-sentence “Motion for
Reconsideration of Sentence” on June 10, 2020. This [c]ourt
denied [Appellant’s] motion for reconsideration of sentence on
September 10, 2020.
On October 9, 2020, [Appellant] filed a Notice of Appeal to
the Superior Court of Pennsylvania from the [c]ourt’s judgment of
sentence entered on June 2, 2020. On November 3, 2020,
pursuant to our request under Pa.R.A.P. 1925(b), we received
[Appellant’s] Concise Statement of Errors Complained of on
Appeal.
Trial Court Opinion, 12/22/20, at 1-2, 19-20 (citations to notes of testimony
omitted).
On appeal, Appellant presents a single question for our review:
Did the Trial Court err when it imposed a sentence inconsistent
with the Sentencing Code and/or contrary to the fundamental
norms which underlie the sentencing process, in that said
sentence constituted an abuse of discretion because the sentence
imposed represented an unreasonable and excessive sentence
which failed to consider mitigating factors?
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Appellant’s Brief at 7.
Appellant challenges the discretionary aspects of his sentence. “The
right to appellate review of the discretionary aspects of a sentence is not
absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014).
“An appellant must satisfy a four-part test to invoke this Court’s jurisdiction
when challenging the discretionary aspects of a sentence.” Id. We conduct
this four-part test to determine whether:
(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post-sentence motion; (2) the appellant
filed a timely notice of appeal; (3) the appellant set forth a concise
statement of reasons relied upon for the allowance of appeal
pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a
substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted). “A defendant presents a substantial question when he sets forth a
plausible argument that the sentence violates a provision of the sentencing
code or is contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations
omitted).
Appellant has complied with the first three prongs of the test by raising
his claim in a timely post-sentence motion, filing a timely notice of appeal,
and including in his brief a Rule 2119(f) concise statement. See Appellant’s
Brief at 22-26.
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Appellant argues his sentence is “manifestly unreasonable and
excessive” because the trial court “failed to consider mitigating factors.”
Appellant’s Brief at 24. Appellant raises a substantial question. See
Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en
banc) (“an excessive sentence claim – in conjunction with an assertion that
the court failed to consider mitigating factors – raises a substantial
question.”).
Preliminarily, we recognize:
Sentencing is a matter vested in the sound discretion of the
sentencing judge. The standard employed when reviewing the
discretionary aspects of sentencing is very narrow. We may
reverse only if the sentencing court abused its discretion or
committed an error of law. A sentence will not be disturbed on
appeal absent a manifest abuse of discretion. In this context, an
abuse of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law, exercised
its judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision. We must accord
the sentencing court’s decision great weight because it was in the
best position to review the defendant’s character, defiance or
indifference, and the overall effect and nature of the crime.
Commonwealth v. Nevels, 203 A.3d 229, 247 (Pa. Super. 2019) (citation
omitted).
Appellant acknowledges his sentence is within the guidelines. See
Appellant’s Brief at 31. However, Appellant argues the court, “failed to
adequately consider mitigating factors and therefore imposed a sentence that
was excessive . . . because the trial court sentenced [Appellant] to a term of
incarceration in a state correctional institution, rather than impose an
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appropriately tailored, below mitigated range sentence consisting of house
arrest and/or county intensive supervision[.]” Id. at 31. Appellant cites his
lack of a prior record, and references his intellectual disabilities, “and how
these disabilities would affect his ability to engage in sex offender treatment
in a state correctional institution.” Id. at 24-25. Appellant states he “reads
and writes at a third grade level. He benefits from strong family support, but
suffers from ADHD, dyslexia, dysgraphia, and difficulty with auditory
processing, which required special schooling[.] . . . These disabilities preclude
him from benefitting from sex offender treatment in large settings, such as
those available in a state correctional institution.” Id. at 36. Appellant also
references his enrollment “in therapy prior to sentencing, during which time
he was cooperative, engaged, and making progress.” Id. at 25. He thus
claims the court should have imposed a “below mitigated range sentence”
consisting of “house arrest and/or county intensive supervision[.]” Id. at 31.
In conducting appellate review, we will “vacate the sentence and
remand the case to the sentencing court with instructions if it finds: … the
sentencing court sentenced within the sentencing guidelines but the case
involves circumstances where the application of the guidelines would be
clearly unreasonable[.]” 42 Pa.C.S.A. § 9781(c)(2). In determining whether
a sentence is “clearly unreasonable,”
the appellate court must consider the defendant’s background and
characteristics as well as the particular circumstances of the
offense involved, the trial court’s opportunity to observe the
defendant, the presentence investigation report, if any, the
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Sentencing Guidelines as promulgated by the Sentencing
Commission, and the ‘findings’ upon which the trial court based
its sentence.
Commonwealth v. Coulverson, 34 A.3d 135, 147 (Pa. Super. 2011)
(citation omitted). See also 42 Pa.C.S.A. § 9781(d).
With regard to confinement,
the court shall follow the general principle that the sentence
imposed should call for confinement that is consistent with
the protection of the public, the gravity of the offense as it
relates to the impact on the life of the victim and on the
community, and the rehabilitative needs of the defendant.
. . . In every case in which the court imposes a sentence for a
felony or misdemeanor . . . the court shall make as a part of the
record, and disclose in open court at the time of sentencing, a
statement of the reason or reasons for the sentence imposed.
42 Pa.C.S.A. § 9721(b) (emphasis added).
Further, where the judge has the benefit of a presentence investigation
report, “it will be presumed that he or she was aware of the relevant
information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Fowler, 893 A.2d 758, 767-68 (Pa. Super. 2006); see also Commonwealth
v. Brown, 249 A.3d 1206, 1212 (Pa. Super. 2021) (“when the trial court has
the benefit of a presentence investigation [] report, it is presumed that the
court was both aware of and appropriately weighed all relevant information
contained therein.”) (citation omitted).
Here, our review confirms that the court — in addition to reviewing
Appellant’s presentence investigation report — “provided ample explanation”
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on the record at sentencing. See Trial Court Opinion, 12/22/20, at 33. The
court commented at length:
[Appellant], I have reviewed the presentence investigation,
the psychosexual evaluation, the sexually violent predator
evaluation from the Pennsylvania [S]exual [O]ffenders
[A]ssessment [B]oard. For the record, the assessment board did
not find that [Appellant] met the statutory criteria to be classified
as a sexually violent predator. … I have also considered the
report from Carol Herzon-Loney regarding [Appellant], the
psychological evaluation and sexual risk assessment regarding
[Appellant] performed by Dr. Dattilio as well as the follow-up
report from Dr. Dattilio as well as the [c]ourt-ordered evaluation
of [Appellant].
I have also considered the sentencing memorandum
submitted by the Commonwealth and defense counsel. I have
thoroughly reviewed all of these reports, and I have considered all
of the recommendations and conclusions. I have considered the
testimony presented here today. I have considered the
statements made today by [Appellant], his counsel, counsel for
the Commonwealth, Dr. Dattilio’s testimony, and also the
testimony of … Carol Herzon-Loney.
In addition, I have considered the guideline form submitted
to the [c]ourt and the letter previously submitted by Dr.
Lieberman. …
[Appellant], you stand before this [c]ourt after having
pleaded guilty to the crime of sexual abuse of children, indecent
contact depicted. You are 29 years old, single, and have no
children. In terms of education you graduated from Kildonan
School in Amenia, New York. You attended one year of community
college and also completed a law enforcement and security officer
training academy offered by the Pennsylvania State Police.
Your work history has been consistent since you
became an adult. You have no history of drug and alcohol
abuse. Other than the current charges, you have never
been arrested for any crime. I have considered the fact
that you pleaded guilty and took responsibility for your
conduct.
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However, although you took responsibility for your conduct,
you seem to blame it on someone when you – on someone who
sent you a link to child pornography. The evidence presented does
not indicate that this was some type of mistake on your part by
wrongly clicking on a link. In addition, the [c]ourt is concerned
that [Appellant’s] possession and viewing of the child pornography
which depicted penetration of children as young as 3 years old will
lead to contact offenses with victims.
In fact, [Appellant] has admitted to the evaluators that he
lured a 13-year-old girl to his car as he worked as a security guard
at a fair when he was 19 years old. He kissed and touched the
breasts of a 15-year-old girl when he was 23 years old. A 15-
years-old girl entered his hotel room and grabbed his penis. And
in 2019, as he was working at a wine and spirits store, a 15-year-
old girl touched him on his inner thigh with her hand. Presentence
investigation concludes that, quote, [Appellant’s] prognosis for
community adjustment must be noted as fair, end quote.
I have weighed all the factors in your favor against
the factors not in your favor. I have considered your age, the
information you have given me, the information in the
presentence investigation, the psychosexual evaluation, sexual
violent predator evaluation from the Pennsylvania Sexual
Offenders Assessment Board, the report from Carol Herzon-Loney
regarding [Appellant], a psychological evaluation, the sexual risk
assessment regarding [Appellant] performed by Dr. Dattilio as
well as a follow-up report from Dr. Dattilio, the [c]ourt-ordered
evaluation as well. I have also considered the sentencing
memoranda submitted by the Commonwealth and defense
counsel.
I have thoroughly reviewed all of these reports and
considered all of the recommendations and conclusions, the
testimony presented today, the guideline forms, the statements
made today by [Appellant], his counsel, counsel for the
Commonwealth. I have considered your family relationships
and background, the fact that you pleaded guilty and took
responsibility for your conduct; however, although you took
responsibility for your conduct you seem to blame it on someone
who sent you a link to child pornography. …
***
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I have considered your lack of a criminal record, your
education, work history, whether you are a good candidate for
rehabilitation, your potential rehabilitative needs, the protection
of the public, the need to deter future similar conduct, the fact
that a lesser sentence would depreciate the seriousness of the
crimes, the recommendation of the prosecutor and the effect that
your crime has had on the community.
I have considered all of the mitigating factors alluded
to by defense counsel and witnesses for the defense and
while I do not believe that these factors would rise to the
level of a mitigated sentence, I have considered those
factors in imposing a sentence at the lowest end of the
standard range. I could have imposed a minimum sentence
anywhere from 30 months to 42 months as a minimum.
Based upon the evidence presented by [defense counsel]
and Dr. Lieberman’s testimony and everything else presented, I
have weighed those factors in your favor, and those factors lead
me to the conclusion that the mitigation that shall be given
to [Appellant] will be mitigation in the standard range, to
the bottom end of the standard range.
N.T., 6/2/20, at 75-80 (emphasis added).
While the court did not specifically mention Appellant’s intellectual
disabilities, it referenced the presentence investigation report, along with
Appellant’s “education,” “background,” “potential rehabilitative needs,” and
“everything else presented.” See id. The court summarized:
Ultimately, we sentenced [Appellant] to the lowest end of a
standard range sentence. As the record indicates, we imposed
this sentence upon consideration of the following facts, among
others: (1) [Appellant’s] previous admitted contact with underage
girls on four separate occasions; (2) his strong familial support
and a lack of a criminal record; (3) the Pre-Sentence Report’s
conclusion that [Appellant’s] prognosis for community adjustment
was fair; (4) the fact that [Appellant] was in possession of child
pornography depicting the penetration of children as young as
three years old; and (5) the fact that [Appellant] both pleaded
guilty and took responsibility for his conduct, but also seemed to
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blame said conduct on someone who sent him a link to child
pornography.
Trial Court Opinion, 12/22/20, at 35-36.
We discern no error. See Commonwealth v. Corley, 31 A.3d 293,
298 (Pa. Super. 2011) (“Where the sentencing court imposed a standard-
range sentence with the benefit of a pre-sentence report, we will not consider
the sentence excessive.”); see also Commonwealth v. Moury, 992 A.2d
162, 171 (Pa. Super. 2010) (“where a sentence is within the standard range
of the guidelines, Pennsylvania law views the sentence as appropriate under
the Sentencing Code.”). Contrary to Appellant’s argument, the court
“considered all of the mitigating factors,” and explained, “while I do not
believe that these factors would rise to the level of a mitigated sentence, I
have considered the factors in imposing a sentence at the lowest end of the
standard range.” See N.T., 6/2/20, at 79; see Fowler, 893 A.2d at 767(“[T]he standard range [] is presumptively where a defendant should be
sentenced.”); see also Commonwealth v. Wright, 600 A.2d 1289, 1291-
92 (Pa. Super. 1991) (a trial court is not required to sentence in the mitigated
or aggravated range, even when presented with mitigating or aggravating
circumstances). Accordingly, no relief is due.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2021
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