Com. v. Solomon, G.

J-S16039-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GARY EUGENE SOLOMON, :
:
Appellant : No. 1331 MDA 2018
Appeal from the Judgment of Sentence Entered July 23, 2018
in the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001063-2017
BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: APRIL 30, 2019
Gary Eugene Solomon (“Solomon”) appeals from the judgment of
sentence imposed following his open guilty plea to two counts of cruelty to
animals.1 We affirm.
In March 2017, the Lycoming County Humane Society received an
anonymous tip that a dog at Solomon’s address was not being fed or receiving
adequate care. Humane Society police officer Shawn McMonigle (“Officer
McMonigle”) responded to Solomon’s home and found the deceased and frozen
body of a terrier-mix dog, lying in an outdoor chain link kennel with insufficient
shelter. Solomon informed Officer McMonigle that the dog had died seven
days ago, the date of a large snowstorm, and Solomon was waiting for the
ground to warm up before burying the dog’s body. Officer McMonigle observed
that the dog’s body was extremely emaciated, and that there was no food
____________________________________________
1 18 Pa.C.S.A. § 5511(a)(2.1), (c).
J-S16039-19
visible in the kennel. A necropsy revealed that the dog died from a
combination of starvation and hypothermia.
On May 24, 2018, Solomon pled guilty to the above-described charges.
The trial court deferred sentencing and ordered a pre-sentence investigation
report (“PSI”). Subsequently, the trial court sentenced Solomon to an
aggregate term of three months to two years, less one day, in prison.
Solomon filed a post-sentence Motion, requesting reconsideration of his
sentence, which the trial court denied. Solomon filed a timely Notice of Appeal
and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters
complained of on appeal.
On appeal, Solomon raises the following question for our review: “Did
the trial court abuse its discretion when imposing an aggravated[-]range
sentence on [Solomon] without fully stating the reasons on the record in
reflection of consideration of an aggravated[-]range sentence?” Brief for
Appellant at 7.
Solomon challenges the discretionary aspects of his sentence.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,
170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary
sentencing issue,
[this Court conducts] a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
-2-
J-S16039-19
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).
***
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. A substantial
question exists only when the appellant advances a colorable
argument that the sentencing judge’s actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the
sentencing process.
Moury, 992 A.2d at 170 (quotation marks and some citations omitted).
Here, Solomon filed a timely Notice of Appeal, raised his sentencing
claim in a post-sentence Motion, and included a Rule 2119(f) Statement in his
brief. Further, Solomon’s claim that the sentencing court imposed an
aggravated-range sentence, without stating on the record the reasons
therefor, raises a substantial question. See Brief for Appellant at 10; see
also Commonwealth v. Booze, 853 A.2d 1263, 1278 (Pa. Super. 2008)
(stating that “an 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.”). Thus, we will review Solomon’s claim.
Our standard of review is as follows:
Sentencing is vested in the discretion of the trial court, and will
not be disturbed absent a manifest abuse of that discretion. An
abuse of discretion involves a sentence which was manifestly
unreasonable, or which resulted from partiality, prejudice, bias, or
ill will. It is more than just an error in judgment.
-3-
J-S16039-19
Commonwealth v. Downing, 990 A.2d 788, 792-93 (Pa. Super. 2010)
(citation omitted).
The sentencing court is given broad discretion in
determining whether a sentence is manifestly excessive because
the sentencing judge is in the best position to measure factors
such as the nature of the crime, the defendant’s character and the
defendant’s display of remorse, defiance, or indifference. In order
to find that a trial court imposed an unreasonable sentence, we
must determine that the sentencing court imposed the sentence
irrationally and that the court was not guided by sound judgment.
Commonwealth v. McClendon, 589 A.2d 706, 712 (Pa. Super. 1991)
(internal citations and quotation marks omitted).
When imposing a sentence, a court is required to consider
the particular circumstances of the offense and the character of
the defendant. In considering these factors, the court should refer
to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation. It must be
demonstrated that the court considered the statutory factors
enunciated for determination of sentencing alternatives, and the
sentencing guidelines. Additionally, the court must impose a
sentence which 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 the community, and the rehabilitative needs of the
defendant.
Id. (quotation marks and citations omitted); see also 42 Pa.C.S.A. § 9721(b).
Further, “where the trial court is informed by a [PSI], it is presumed that the
court is aware of all appropriate sentencing factors and considerations, and
that where the court has been so informed, its discretion should not be
disturbed.” Downing, 990 A.2d at 794 (quotation marks and citations
omitted).
-4-
J-S16039-19
Here, the record reflects that the trial court considered the PSI, the
sentencing guidelines, the severity of Solomon’s crimes, Solomon’s lack of
remorse for his crimes, the mitigating and aggravating factors, the protection
of the public, and Solomon’s rehabilitative needs. See N.T., 7/23/18, at 2,
13; Trial Court Opinion, 10/8/18, at 2-3 (pages unnumbered). During the
sentencing hearing, the trial court noted that it was particularly concerned
with the severity of the dog’s mistreatment, and Solomon’s lack of remorse.
See id. at 13 (wherein the trial court stated that “I’m moved by this. And I
can’t get by how no one in the family could do anything for this poor dog.”);
Trial Court Opinion at 5 (unnumbered) (stating that Solomon “did not appear
to appreciate the seriousness of the crimes he committed or the impact on
others or the community.”).
We agree with the court’s analysis, and additionally note the testimony
of Officer McMonigle. At Solomon’s sentencing hearing, Officer McMonigle
testified that this was one of the worst animal cruelty cases he had ever seen.
See N.T., 8/22/18, at 3. Officer McMonigle stated that the dog’s stomach and
intestines were void of any food or waste, and the dog’s body had no fat
reserves remaining. Id. Pieces of wood were found between the dog’s teeth
and gums, evidencing the dog’s attempt to consume the doghouse to stay
alive. Id. at 4. Moreover, Officer McMonigle testified that at Solomon’s
preliminary hearing, Solomon asked if he could pay a fine for his offense, and
leave. Id. at 4-5.
-5-
J-S16039-19
We conclude that the trial court properly considered all the statutory
factors before sentencing Solomon. See McClendon, supra. Moreover,
because the trial court had the benefit of a PSI, it is presumed that the court
was aware of relevant information regarding Solomon’s character, and
weighed those considerations along with any mitigating factors. See
Downing, supra; see also Commonwealth v. Fowler, 893 A.2d 758, 766
(Pa. Super. 2006) (rejecting the appellant’s claim that the sentencing court
had abused its discretion by imposing sentence without stating adequate
reasons on the record, and holding that “[s]ince the sentencing court had and
considered a [PSI], this fact alone was adequate to support the sentence[.]”).
Accordingly, Solomon’s discretionary sentencing challenge fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/30/2019
-6-