Com. v. McCord, S.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
SCOTT M. MCCORD :
:
Appellant : No. 1326 EDA 2021
Appeal from the Judgment of Sentence Entered May 7, 2021
In the Court of Common Pleas of Wayne County
Criminal Division at No. CP-64-CR-0000172-2020
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED JANUARY 11, 2022
Scott M. McCord (Appellant) appeals from the judgment of sentence
imposed after he pled nolo contendere to corruption of minors.1 We affirm.
At the nolo contendere hearing, the Commonwealth recited the following
facts:
[B]etween September 2019 and January 2020 [Appellant],
a 36 year old man, cultivated a relationship with R.S., his 14 year
old next door neighbor in Wayne County, Pennsylvania.
On a near daily basis [Appellant] had extensive phone
contact, social media contact, text messaging, and in person
meetings with the minor child and her two close friends, C.R. and
H.W., also teenagers.
[Appellant] regularly referred to the children as his
girlfriends and their in person meetings as dates. Eventually
[Appellant] and R.S. began exchanging inappropriate pictures.
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. § 6301(a)(1)(i).
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Investigators discovered well over 50 self taken photographs of
[Appellant] on the juvenile’s phone, including pictures of himself
in the shower and on his bed. [Appellant] also requested and
received suggestive photographs of the children in various states
of undress.
Throughout their contact [Appellant] engaged R.S. in
sexually explicit conversations including discussing sexual
fantasies that involved her two friends.
N.T., 3/24/21, at 11-12.
Appellant was charged with one count each of statutory sexual assault,
unlawful contact with a minor, criminal use of a communication facility, and
two counts of corruption of minors.2 On March 24, 2021, Appellant pled nolo
contendere to one count of corruption of minors, and the remaining charges
were nolle prossed. On May 7, 2021, the trial court sentenced Appellant to 6
- 23 months of incarceration, followed by 3 years of probation.
Appellant timely filed a post-sentence motion challenging the
discretionary aspects of his sentence and the location of his incarceration; he
also requested credit for time served. Post-Sentence Motion, 5/14/21.
Following a hearing, the court granted Appellant’s request for credit for time
served, but otherwise denied relief. Order, 6/7/21, at 1. Appellant timely
appealed. Both Appellant and the trial court have complied with Pa.R.A.P.
1925.3
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2 18 Pa.C.S.A. §§ 3122.1(b), 6318(a)(1), 7512(a), and 6301(a)(1).
3 The trial court stated the “reasons for our decision for the matters
complained of by [] Appellant are contained in the Order [docketed] June [7],
2021.” Pa.R.A.P. 1925(a) Statement, 7/27/21, at 1.
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Appellant presents a single issue for review:
Did the sentencing court abuse its discretion in sentencing
[Appellant] in the aggravated range without adequate reasons and
without giving appropriate consideration to any mitigating factors?
Appellant’s Brief at 4.4
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
____________________________________________
4 In his concise statement, Appellant raised an additional claim challenging
the location of his incarceration. See Pa.R.A.P. 1925(b) Statement, 7/19/21,
at 2. We do not address the claim because Appellant did not include it in his
brief. See Commonwealth v. Briggs, 12 A.3d 291, 310 n.19 (Pa. 2011)
(refusing to address claim raised with trial court but subsequently abandoned
in appellate brief).
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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).
Instantly, Appellant 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 16-18.
In addition, Appellant raises a substantial question in arguing the trial
court “imposed an aggravated-range sentence without stating on the record
and guideline form adequate reasons” for the sentence. Appellant’s Brief at
18; Commonwealth v. Booze, 953 A.2d 1263, 1278 (Pa. Super. 2008)
(“[A]n allegation that the court failed to state adequate reasons on the record
for imposing an aggravated-range sentence . . . raises a substantial question
for our review.”) (citations omitted). Appellant also raises a substantial
question in arguing the court “imposed an aggravated-range sentence without
considering mitigating circumstances.” Appellant’s Brief at 18;
Commonwealth v. Hyland, 875 A.2d 1175, 1183-84 (Pa. Super. 2005).
Preliminarily, we recognize that:
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,
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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 argues that while the trial court “does point to several things
that ‘stuck out’ to it before it imposed its sentence on [Appellant], the court
never specifically states the reason why it abandoned the recommendation of
both probation and the Commonwealth to sentence [Appellant] in the
aggravated range.” Appellant’s Brief at 21. Appellant further asserts that the
court “virtually ignores all of the various mitigating factors present in this
case.” Id. at 23.
Conversely, the Commonwealth states the trial court “made on-the-
record findings as to the reasons behind its imposition of sentence within the
aggravated range,” and because the court “had the benefit of a Pre-Sentence
Investigation [(PSI) report], the law presumes [it] was aware of the relevant
information regarding the appellant’s environment and had weighed those
considerations along with any mitigating factors.” Commonwealth Brief at 4-
5. We agree with the Commonwealth.
When a trial court imposes an aggravated range sentence, “it shall state
the reasons on the record.” 204 Pa. Code § 303.13. “In every case in which
the court imposes a sentence for a felony or misdemeanor, modifies a
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sentence, resentences a person following revocation of probation or
resentences following remand, 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). We have
explained:
The court is not required to parrot the words of the Sentencing
Code, stating every factor that must be considered under Section
9721(b). However, the record as a whole must reflect due
consideration by the court of the statutory considerations
enunciated in that section.
Commonwealth v. Coulverson, 34 A.3d 135, 145-46 (Pa. Super. 2011)
(citations omitted).
Further:
In imposing sentence, the trial court is required to consider the
particular circumstances of the offense and the character of the
defendant. The trial court should refer to the defendant’s prior
criminal record, age, personal characteristics, and potential for
rehabilitation. However, where the sentencing judge had 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. Additionally, the sentencing court must state
its reasons for the sentence on the record. 42 Pa.C.S.A. §
9721(b). The sentencing judge can satisfy the requirement
that reasons for imposing sentence be placed on the record
by indicating that he or she has been informed by the pre-
sentencing report; thus properly considering and weighing all
relevant factors.
Commonwealth v. Fowler, 893 A.2d 758, 767-68 (Pa. Super. 2006)) (citing
Commonwealth v. Boyer, 856 A.2d 149, 154 (Pa. Super. 2004)) (citations
omitted, emphasis added).
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Here, at the sentencing hearing, the trial court stated it had “reviewed
the entire [PSI] report.” N.T., 5/7/21, at 30. The court then commented at
length, stating it
has listened to the statements made by defense counsel as well
as [Appellant] as well as the Commonwealth, and [] as well as [an
individual] on behalf of all of the victims.
A couple things stuck out … as I worked my way through this
particular report, first off is how – what a devastating impact this
had on these young girls. And there is no way you can erase that,
and this is a time when they quite frankly should have been
enjoying their youth, enjoying their innocence, and to a large
degree you participated in taking that away from them. Although
there is only one count here, you did agree to accept responsibility
for three different girls, which to the [c]ourt is very compelling in
terms of the fact that you received a plea for one count despite
having three victims. So you received a substantial bargain from
that negotiated resolution.
As [the Commonwealth] noted, and I noted as well as soon as I
read it because I do look for some type of remorse when I read
these particular statements, and you did suggest you had remorse
here today as well, however your statement to my Probation
Officer started off that there is confusion and misunderstanding in
this offense, which quite frankly the [c]ourt is having a hard time,
from my perspective, understanding. And maybe that is the
misunderstanding. I think if there is any confusion or
misunderstanding it is on your end, not on the Commonwealth’s
end or this [c]ourt’s end. Your conduct was reprehensible. In
terms of what the [c]ourt has seen, I certainly have not seen a
pile of text messages, but in terms of what I have seen and what
was placed on the record at your plea, some of these particular
conversations – I cannot imagine an adult speaking to a child that
way. Quite frankly, I am not sure I can imagine another adult
speaking to another adult that way, yet you exposed these
children to that type of communication.
You suggest that you were filling a father role, and I highlighted
that as well, because again, in my search for some type of remorse
I see – what I see instead is some type of justification in your
mind to demonstrate that you were not doing something wrong.
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Being a father of two girls I cannot understand what you thought
you were doing if you were being a father in that situation. You
admit to talking to this 14 year old child about sex. I cannot, in
any circumstance, understand how a stranger, without some type
of parental involvement of her parents, would take it upon
themselves to talk to that child about sex, especially in the manner
that you took – undertook with this child. You also indicate you
liked taking funny selfie pictures, and I do recall at the [] plea
proceeding there was a reference to at least one where you took
a picture of yourself in the shower. The [c]ourt does not find that
to be funny in any way, and sending – adult man showering
sending it to a minor child, even if it did not expose your genitalia,
quite frankly, demonstrates not that you were not acting as a
father but that you were acting to a large degree as a predator.
You then conclude your statement by suggesting that some lines
were crossed, which suggests in your mind that you maintained
appropriate behavior in some degree and simply crossed in others.
From the [c]ourt’s perspective there is nothing here that stayed
within the lines of acceptable, responsible adult behavior. So I
then look to see what you had done, because quite frankly the
statement suggested – did not indicate any type of real
understanding for your offense, so I did look, and I looked at your
counseling record in South Carolina, and I also looked at my pre-
sentence report when you moved to South Carolina. You moved
to South Carolina in February of 2020 so I expected to see some
pretty extensive counseling as you attempted to deal with
whatever caused this particular behavior. Instead, I received a
letter dated April of 2021 which was 14 months after you move[d]
to South Carolina, indicating that you had done a total of three
sessions of counseling in those 14 months, which again, from the
[c]ourt’s perspective, does not suggest any level of remorse or
any indication that you recognize you have a problem. If
anything, it suggests that you were hurry[ing] up getting some
counseling done before you came to this sentencing proceeding
so you could suggest to the [c]ourt that you were addressing the
problem.
So, with all of that said, the [c]ourt finds that you have not
demonstrated any real level of remorse for this. I find the
behavior to be morally reprehensible, legally reprehensible, and
that your justifications for them are likewise reprehensible, and
the fact that we do have three underage victims here as well as
your lack of any type of real acceptance of responsibility and your
attempt to justify your conduct as acting as a father [figure,] the
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[c]ourt will abandon the recommendation that has been made by
both the Probation Department as well as the Commonwealth, and
sentence you in the aggravated range[.]
Id. at 30-34.
We discern no error. Contrary to Appellant’s argument, the “transcript
of the sentencing proceeding … demonstrates that the court articulated a
number of reasons for utilizing the aggravated range of the sentencing
guidelines.” Order, 6/7/21, at 1 n.1; N.T., 5/7/21, at 30-34. Specifically, the
court imposed an aggravated-range sentence based upon Appellant
victimizing “3 different underage victims,” failing “to meaningfully accept
responsibility for his conduct when he made statements in the pre-sentence
interview,” and attempting “to justify his sexually grooming behavior by
suggesting that he was acting in a father-like role.” See id. (citing N.T.,
5/7/21, at 33). Further, because it reviewed the PSI report, we “presume that
the court properly weighed the mitigating factors present in the case.”
Fowler, 893 A.2d at 766. Accordingly, no relief is due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/11/2022
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