Com. v. Ramos-Pacheco, A.

J-S48019-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ALEXANDER RAMOS-PACHECO
Appellant No. 482 MDA 2017
Appeal from the Judgment of Sentence imposed February 1, 2017
In the Court of Common Pleas of Lancaster County
Criminal Division at No: CP-36-CR-0005002-2014
BEFORE: OTT, STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED NOVEMBER 09, 2017
Appellant Alexander Ramos-Pacheco appeals from the judgment of
sentence the Court of Common Pleas of Lancaster County imposed on
February 1, 2017. Appellant argues the sentencing court abused its
discretion by failing to account for certain mitigating factors.1 We disagree.
Accordingly, we affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 Appellant’s challenge involves the discretionary aspects of his sentence.
See, e.g., Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa. Super.
2008). Our standard for reviewing challenges to the discretionary aspects of
a sentence is well-established. See, e.g., Commonwealth v. Moury, 992
A.2d 162 (Pa. Super. 2010):
(Footnote Continued Next Page)
J-S48019-17
(Footnote Continued) _______________________
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal,
see Pa.R.A.P. 902 and 903; (2) whether the issue
was properly preserved at sentencing or in a motion
to reconsider and modify sentence, see Pa.R.Crim.P.
[720]; (3) whether appellant’s brief has a fatal
defect, 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).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.
2006)).
Assuming all the requirements above mentioned are met, we will
review the question under an abuse of discretion standard:
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. An abuse of discretion is
more than just an error in judgment and, on appeal, the trial
court will not be found to have abused its discretion unless the
record discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill-
will.
Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012)
(quoting Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super.
2002)), appeal denied, 820 A.2d 703 (Pa. 2003)).
-2-
J-S48019-17
The factual and procedural background are not at issue here. Briefly,
Appellant entered a guilty plea to three counts of simple assault, aggravated
assault, use of electronic incapacitation device, terroristic threats, and
stalking, in connection with multiple incidents involving Ms. Heather Orlando
(“Victim”) over an extended period of time. Appellant was sentenced to an
aggregate sentence of incarceration of not less than 13 years nor more than
30 years.2
Appellant argues the sentencing court’s failure to weigh more
favorably some mitigating factors (i.e., his young age, the absence of a
significant adult criminal history, his mild mental retardation, some other
unidentified “mental health” issues, and low education) resulted in a
manifestly excessive sentence. Appellant’s Brief at 8. We disagree.
The circumstances noted above, all of them, were addressed in the
Pre-Sentence Investigation Report, which the sentencing court consulted
before sentencing, and/or were addressed at the sentencing hearing. Thus,
the sentencing court fully considered the above circumstances, but not as
____________________________________________
2 Specifically, Appellant was sentenced to the following terms of
incarceration: count 1, simple assault, 6 months to 2 years; count 2,
aggravated assault, 8 years to 20 years; count 3, use of electronic
incapacitation device, 2½ to 5 years; count 4, terroristic threats, 6 months
to 2 years; count 5, simple assault: 6 months to 2 years; count 6, simple
assault, 6 months to 2 years; and, count 7, stalking, 2½ to 5 years. The
sentences imposed on counts 2, 3, and 7 were made consecutive to one
another, whereas the sentences on all other counts were made concurrent.
Trial Court Opinion, 4/11/17, at 2.
-3-
J-S48019-17
favorably as Appellant was hoping. In other words, Appellant is merely
dissatisfied with the way the sentencing court handled the mitigating
circumstances. It is well-established, however, that mere dissatisfaction
with a sentence is not enough to trigger our jurisdiction. Moury, 992 A.2d
at 175 (“court[’s] refus[al] to weigh the proposed mitigating factors as
[a]ppellant wished, absent more, does not raise a substantial question.”).
Even if we were to find otherwise, Appellant, in essence, is merely
asking us to reweigh the mitigating circumstances and substitute our
judgment for that of the sentencing court. We cannot do it. See, e.g.,
Commonwealth v. Brown, 741 A.2d 726, 735 (Pa. Super. 1999), appeal
denied, 790 A.2d 1013 (Pa. 2001) (“[W]hen reviewing sentencing matters,
we must accord the sentencing court great weight as it 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.”) (citation
omitted).
Furthermore, to the extent Appellant raised a reviewable question, we
find it lacks merit for the reasons stated by the sentencing court in its
comprehensive 15-page opinion. See Trial Court Opinion, 4/11/17, at 7-
15.3 As mentioned above, the sentencing court addressed, inter alia, all
____________________________________________
3 We direct that a copy of the trial court’s April 11, 2017 opinion be attached
to any future filings in this case.
-4-
J-S48019-17
mitigating factors raised by Appellant, although not as favorably as Appellant
had wished. Id. at 8-9. The sentencing court also considered: (i) the
gravity of the offenses, id. at 9; (ii) the impact of offenses on Victim, id. at
9-10; (iii) Appellant’s comments at sentencing, which the sentencing court
described as “rambling,” “show[ing] no remorse, but rather an indifference
to the crimes he committed,” id. at 11; and (iv) Appellant’s rehabilitative
needs (“there was little to indicate he had made any attempt to change his
lifestyle since committing crimes starting at the age of fourteen.” Id. at 12).
The sentencing court also identified specific aggravating circumstances
supporting a sentence above the standard range of the guidelines, id. at 12-
13, and justified the imposition of consecutive sentences in light of “the
significant amount of brutal crimes committed by Appellant over a period of
years,” id. at 15, “lack of remorse”, id., Appellant’s criminal history, and
Appellant’s “poor prospects for treatment or rehabilitation.” Id.
Accordingly, we conclude the sentencing court did not abuse its discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/9/2017
-5-
Circulated 10/26/2017 11:36 AM
) )
IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEALTH OF PENNSYLVANIA
482 MDA 2017
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On October 1, 2014, Detective Randell Zook of the Lancaster City Bureau t±- Police filed
a police criminal complaint alleging that Alexander Ramos-Pacheco ("Appellant") had engaged
in a pattern of physical abuse against Heather Orlando ("victim") over an extended period of
time. See Police Criminal Complaint and Affidavit of Probable Cause.
Thereafter, the district attorney filed a criminal information charging Appellant with:
( count 1) aggravated assault for using a stun gun 20-30 times to deliver an electric shock to the
victim, causing scars; ( count 2) aggravated assault for causing the victim to black out by placing
a belt around her neck and choking her; ( count 3) use or possession of electronic incapacitation
device for using a stun gun 20-30 times on the victim; (count 4) terroristic threats for repeatedly
threatening to kill the victim and her children; (count 5) simple assault for putting a handgun to
the victim's head and threatening to kill her; (count 6) simple assault for hitting the victim
multiple times a day over a period of three years; and ( count 7) stalking for repeatedly engaging
in the course of conduct referenced in counts one through six above, which placed the victim in
substantial emotional distress and caused her bodily injury.' See Information.
1
18 Pa.C.S.A. §§ 2702(a)(l), 2702(a)(l), 908.l(a)(l), 2706(a)(l), 2701(a)(3), 2701(a)(I), and
2709.1 (a)(2), respectively.
?£ -
Duringjury selection on November 14, 2016, Appellant decided to discontinue his trial
and plead guilty. (Notes of Testimony, Guilty Plea, at 50-52) (hereinafter "N.T.G.P."). More
specifically, Appellant pleaded guilty to the charges as filed on counts 2, 4, 5, 6, and 7, as well as
the reduced charge of simple assault on count 1 and a reduced grading on the charge of use or
possession of electronic incapacitation device on count 3. Id. at 50- 72. Sentencing was deferred
pending the completion of a pre-sentence investigation report ("PSI"). Id. at 51, 72.
On February 1, 201 7, Appellant was sentenced as follows: (count 1) simple assault: 6
months to 2 years in the state correctional institution ("SCI"); ( count 2) aggravated assault: 8 to
20 years SCI; (count 3) use of electronic incapacitation device: 2Yz to 5 years SCI; (count 4)
terroristic threats: 6 months to 2 years SCI; ( count 5) simple assault: 6 months to 2 years SCI;
( count 6) simple assault: 6 months to 2 years SCI; and (count 7) stalking: 2 Yz to 5 years SCI.
(Notes of Testimony, Sentencing, at 30-31) (hereinafter "N.T.S.").2 The sentences imposed on
counts 2, 3, and 7 were made consecutive to one another, while the sentences on all other counts
were made concurrent. Id. at 31. Therefore, the aggregate sentence called for incarceration in
SCI for a period of not less than 13 years nor more than 3 0 years. Id.
On February 2, 2017, Appellant filed a Post-Sentence Motion to Reconsider Sentence.
After the Commonwealth filed a response in opposition, the court entered an order denying said
motion. See 3/7/17 Order. On March 16, 2017, Appellant timely filed a Notice of Appeal to the
2
The Sentencing Guidelines Worksheet listed the following recommended standard range sentences:
{ count I) simple assault: RS-6 months; (count 2) aggravated assault: 30-42 months ( + 12 months); ( count
3) use of electronic incapacitation device: RS-9 months(+ 3 months); (count 4) terroristic threats: RS-6
months; (count 5) simple assault: RS-6 months; (count 6) simple assault: RS-6 months; (count 7)
stalking: RS-9 months (+3 months). See Guidelines Worksheet. As such, the minimum sentences
imposed on counts I, 4, 5, and 6 were within the standard range of the sentencing guidelines, while the
sentences imposed on counts 2, 3, and 7 were above the aggravated range of the guidelines.
2
Superior Court of Pennsylvania. Appellant then filed a Statement of Errors Complained of on
Appeal ("Statement"), alleging the trial court "imposed a manifestly excessive sentence by
imposing consecutive sentences above the aggravated range without properly considering
mitigating factors and the rehabilitative needs of the defendant." See Statement. This opinion is
written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure.
DISCUSSION
A defendant's right to appeal the discretionary aspects of his sentence is not absolute, and
before such a challenge will be heard two requirements must be met. Commonwealth v. Fiascki,
886 A.2d 261, 263 (Pa. Super. 2005). First, an appellant must set forth a concise statement of the
reasons relied upon for allowance of appeal with regard to the discretionary aspects of a sentence.
Id.; Pa.R.A.P. 2119(f). Second, the appellant must show there is "a substantial question that the
sentence imposed is not appropriate under the Sentencing Code." Fiascki, 886 A.2d at 263
(quoting Commonwealth v. Bishop, 831 A.2d 656, 660 (Pa. Super. 2003)); 42 Pa.C.S.A. §
9781(b).
To establish the existence of a substantial question, an appellant must show that the
actions taken by the sentencing court are inconsistent with the sentencing code, contrary to the
fundamental norms that underlie the sentencing process, or violate application of the sentencing
guidelines. Fiascki, 886 A.2d at 263-64. That is, "a party must articulate reasons why a
particular sentence raises doubts that the trial court did not properly consider [the] general
guidelines provided by the legislature." Commonwealth v. Mouzon, 812 A.2d 617, 622 (Pa.
2002) (quoting Commonwealth v. Koehler, 737 A.2d 225, 244 (Pa. 1999)). "A bald allegation of
excessiveness will not suffice" to establish a substantial question. Fiascki, 886 A.2d at 263.
3
In the present case, Appellant has timely filed a Statement which sets forth the reasons
relied upon for allowance of appeal with respect to the discretionary aspect of his sentence. See
Statement. Therefore, the court will presume for purposes of this appeal that Appellant will
likewise satisfy the requirements of Pa.R.A.P. 2119(t) by filing a separate concise statement with
the Superior Court of Pennsylvania.
As to the second requirement, Appellant must show there is a substantial question the
sentence imposed is not appropriate under the sentencing code. In his Statement, Appellant has
averred that consecutive sentences above the aggravated range of the sentencing guidelines on
three of the seven counts were manifestly excessive, without properly considering mitigating
factors and the rehabilitative needs of Appellant.
When a sentence falls within the standard range of the sentencing guidelines, '"[the
Superior Court] has held on numerous occasions that a claim of inadequate consideration of
mitigating factors does not raise a substantial question for our review.'" Commonwealth v.
Matroni, 923 A.2d 444, 455 (Pa. Super. 2007) (quoting Commonwealth v. Bullock, 868 A.2d
516, 529 (Pa. Super. 2005)). However, Appellant's sentence on three counts was above the
aggravated range of the sentencing guidelines, and a "claim that the court erred by imposing an
aggravated range sentence without consideration of mitigating circumstances raises a substantial
question." Commonwealth v. Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003). Therefore, the
court will address Appellant's claim on the merits.
When determining an appropriate sentence, the court is required to consider a defendant's
character, prior criminal record, age, personal characteristics, potential for rehabilitation, and
particular circumstances of the offense. Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.
4
Super. 2005). The goal of the sentencing code is to ensure 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."' Mouzon, 812 A.2d at 620 (quoting 42 Pa.C.S.A. § 9721(b)).
If the sentencing court takes into consideration information contained within a pre-
sentence investigation report, the Superior Court has noted:
Since the sentencing court had and considered a presentence report, this fact alone
was adequate to support the sentence, and due to the court's explicit reliance on that
report, we are required to presume that the court properly weighed the mitigating
factors present in the case ... 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.
Commonwealth v. Fowler, 893 A.2d 758, 766-67 (Pa. Super. 2006) (quoting Commonwealth v.
Boyer, 856 A.2d 149, 154 (Pa. Super. 2004)) (citation omitted).
The general standard of review when considering a challenge to the discretionary aspects
of a court's sentence has been established by the Superior Court 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. 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 Jaw, exercised its judgment for reasons of partiality,
prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.
Hyland, 875 A.2d at 1184 (quoting Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super.
1999)).
In discussing the rationale behind such broad discretion to the sentencing court and the
deferential standard of appellate review, the Pennsylvania Supreme Court has stated:
5
[T]he sentencing court is in the best position to determine the proper penalty for a
particular offense based upon an evaluation of the individual circumstances before
it. ... Simply stated, the sentencing court sentences flesh-and-blood defendants and
the nuances of sentencing decisions are difficult to gauge from the cold transcript
used upon appellate review. Moreover, the sentencing court enjoys an institutional
advantage to appellate review, bringing to its decisions an expertise, experience, and
judgment that should not be lightly disturbed. Even with the advent of the sentencing
guidelines, the power of sentencing is a function to be performed by the sentencing
court.
Commonwealth v. Walls, 926 A.2d 957, 961-62 (Pa. 2007). The Supreme Court noted that the
sentencing court is in a superior position to '"view the defendant's character, displays of remorse,
defiance or indifference and the overall effect and nature of the crime."' Id. at 961 ( quoting
Commonwealth v. Jones, 613 A.2d 587, 591 (Pa. Super. 1992)).
When reviewing a challenge to the discretionary aspects of a sentence, the appellate court
should affirm the trial court's sentence unless it finds: "(l ) that the guidelines were erroneously
applied; (2) that the sentence, even though within the guidelines, is 'clearly unreasonable'; or (3)
that the sentence, if outside the guidelines, is 'unreasonable."' Fiascki, 886 A.2d at 263; 42
Pa.C.S.A. § 9781 (c ). To determine if a sentence is unreasonable, appellate courts must consider
the circumstances of the offense, background and characteristics of the defendant, opportunity of
the trial court to observe the defendant, the trial court's review of any presentence investigation,
findings upon which the sentence was based, and sentencing guidelines promulgated by the
Sentencing Commission. Commonwealth v. Moore, 617 A.2d 8, 12 (Pa. Super. 1992); 42
Pa.C.S.A. § 9781 ( d). In Walls, supra, the Supreme Court declined to define "unreasonableness,"
but stated "we are confident that rejection of a sentencing court's imposition of sentence on
unreasonableness grounds would occur infrequently ... especially when the unreasonableness
inquiry is conducted using the proper standard of review." Walls, 926 A.2d at 964.
6
As to sentencing guidelines, the Supreme Court stated:
the guidelines have no binding effect, create no presumption in sentencing, and do
not predominate over other sentencing factors - they are advisory guideposts that are
valuable, may provide an essential starting point, and that must be respected and
considered; they recommend, however, rather than require a particular sentence.
Walls, 926 A.2d at 964-65. There is no requirement that courts sentence to the minimum
confinement. Id. at 965. Rather, "trial courts retain broad discretion in sentencing matters, and
therefore, may sentence defendants outside the Guidelines." Mouzon, 812 A.2d at 621.
In Commonwealth v. Warren, 84 A.3d 1092 (Pa. Super. 2014), the Superior Court held
that a sentencing court may depart from the sentencing guidelines if necessary to fashion a
sentence which takes into account protection of the public, rehabilitative needs of the defendant,
and gravity of the particular offense as it relates to impact on the life of the victim or the
community. Id. at 1097. In Commonwealth v. Crork, 966 A.2d 585 (Pa. Super. 2009), the trial
court's imposition of a sentence above the aggravated range of the sentencing guidelines was not
manifestly unreasonable when the court considered the defendant's prior criminal record,
seriousness of the offense, the young age of the victim, the impact of the crime on the victim, the
defendant's own age, health, intelligence and maturity level, his work history, and his
unsuccessful attempts at rehabilitation. Id. at 590-91.
In the case sub Judice, the sentencing court confirmed prior to imposing sentence that all
information contained in the PSI was accurate. (N.T.S. at 2-3). The court then relied heavily on
that information before imposing sentence. Id. at 3-30. Thus, there is a presumption that the
court was aware of and properly weighed all relevant information regarding Appellant's
character, rehabilitative needs, and mitigating circumstances. See Fowler.
7
Appellant claims in his Statement that the court did not properly consider his age as a
mitigating factor at sentencing. See Statement. However, the court noted at sentencing that
Appellant was 24 years of age when these offenses occurred, an age of sufficient maturity to
understand the significance of his acts. (N.T.S. at 27). Appellant further claims in his Statement
the court did not properly consider his mental health history as a mitigating factor. See
Statement. However, the court did consider a psychiatric evaluation performed on Appellant in
2003, when he was 13 years of age, which stated he was showing severe aggressive behavior,
threatening to kill people, and he was a danger to himself and others. (N.T.S. at 25-26). The
court also reviewed a psychological evaluation performed in 2005 which provided a diagnosis of
ADHD, Oppositional/Defiant Disorder, and mild mental retardation. Id.
Appellant's level of education was discussed. (N.T.S. at 27). Although he left school in
the 7th grade, there was nothing to indicate a lack of intellectual ability that would prevent
Appellant from understanding the significance of his acts or the difference between right and
wrong. Id. The court also considered the character and history of Appellant as disclosed in the
PSI, and by observing Appellant when he appeared before the court for the trial, subsequent
guilty plea, and sentencing. Id.
Appellant's history of substance abuse was considered by the court. (N.T.S. at 26).
Appellant reported the daily use of marijuana in 2013, the use of cocaine for one year, and
drinking every day until he was able to stop. Id.
The PSI disclosed that Appellant was adjudicated delinquent for theft in 2003, he violated
probation in 2004, and he was found delinquent for felony theft in 2005. (N.T.S. at 27-28).
Appellant also had prior adult convictions for disorderly conduct and possession of marijuana in
8
2008, as well as felony criminal trespass and possession of marijuana in 2009. Id at 28. As
noted, this was at least the sixth time Appellant had appeared before the court since 2003 for a
new crime or probation violation. Id.
The Court gave serious consideration to the gravity of the offenses as described by the
prosecutor at the time of the guilty plea. (N.T.S. at 28-29). As noted by the prosecutor:
Between November of 2013 and April of 2014, the defendant did use a battery
powered stun gun-style device to deliver an electric shock to his ex-girlfriend,
Heather Orlando, approximately 20 to 30 times, causing numerous marks and scars
on her body.
He did place a belt around her neck, choking her with the belt, causing her to have
trouble breathing, causing dizziness and blacking out.
He did possess that stun gun for an unlawful purpose of engaging in the simple
assault. He did, on numerous occasions during the course of the relationship,
threaten to kill Ms. Orlando. He choked her, stated he was going to - - he pointed a
gun at her, stating he was going to blow her and the kids' heads off and his own. He
stated on numerous times he was going to kill her and her family, including his own
family.
He did, in an attempt to put her in fear of imminent serious bodily injury, point a
handgun at her at her head. This was done because he believed she was cheating on
him and wanted her to tell another friend that she had cheated on him.
He did, over the past several years, multiple times a day hit and punch the victim,
causing bodily injury. And all of those things, the stun gun, the belt, the punching,
kicking and the pointing of a gun was over a period of time, was a course of conduct
which intended to either put her in fear of bodily injury, cause bodily injury, or cause
her emotional distress.
(N.T.G.P. at 63-64). Thereafter, Appellant admitted he committed these crimes. Id. at 64-65.
The court also considered the impact these crimes had on the victim. At sentencing, a
five-minute audio recording made by Appellant was played for the court, where Appellant could
be heard beating the victim in the presence of their children and threatening to kill her. (N.T.S.
9
at 4- 7). This was just one snippet ofrecordings that totaled hours of abuse. Id. at 7. According
to the prosecutor, Appellant would turn up the music when he was beating the victim so other
people could not hear her crying or yelling, and this could be heard on the audio. Id.
The prosecuting officer described in detail the conduct of Appellant towards the victim,
and the resulting impact. (N.T.S. at 8-12). As noted by the detective, Appellant "became
controlling and tried to control every single aspect of her life." Id. at 8. "This need for control
continued to escalate, and [Appellant] began becoming physically violent towards her." Id. at 9.
The detective reviewed recorded files on Appellant's cellular phone which corroborated the
victim and provided a "horrifying glimpse into the daily hell that Heather endured over her years'
long relationship with [Appellant]." Id. at 10. In asking for the stiffest punishment possible, the
fourteen-year veteran of the Lancaster City Bureau of Police stated:
I've worked hundreds ofinvestigations involving some of the most heinous offenses
against both adult and child victims. I have heard witness statements and victim
statements of terrible things that have happened to innocent victims, but listening to
these recordings for hours and, essentially, witnessing firsthand the abuse Heather
had to endure was hard for me to stomach. The pain, both physical and emotional,
that Heather went through on a daily basis are beyond what any person should have
to bear.
There are things from investigations that I will never be able to forget. Things that
have happened to victims that will never leave me, and I will never be able to forget
what I heard on these recordings. Heather's repeated pleas for help and ongoing
abuse that [Appellant] mercilessly tortured her with are etched in my memory
forever. I cannot imagine the daily horror that Heather had to go through living with
[Appellant].
I do not say this lightly, but I am surprised that this was not a homicide investigation
and believe if we had not become involved at some point, it would have been.
(N.T.S. at 10-12). This court agreed, finding Appellant's conduct to be "vicious, callous,
sadistic, incomprehensible." Id. at 29.
10
The victim's mother spoke at sentencing, stating that for five years she did not get to see
or speak to her daughter even though they lived only 15 minutes apart because of Appellant's
control over the victim. (N.T.S. at 12-14). As stated by the witness, "I finally got to a point
where I thought I'd never see her again, until I get that phone call saying that your daughter's in
the hospital or come to the morgue, because I didn't think I would ever see her again." Id. at 13.
The court considered comments of Appellant and his counsel. (N.T.S. at 26). Appellant
gave a rambling statement that showed no remorse, but rather an indifference to the crimes he
committed. Id. at 16-22. Seeking to clarify his conduct, Appellant stated "I never punched her.
It was only smacking." Id. at 18. While admitting he tightened a belt around her neck, Appellant
claimed he did so to scare the victim because she was trying to kill herself with the belt. Id at
19. Appellant discussed "three conditions that we had; never cheat on me, never lie to me, and
never stop loving me, point-blank." Id. at 20. Appellant then discussed the rules he imposed on
the victim because she was "walking around with booty shorts calling around on the street." Id.
During a subsequent colloquy with the court, Appellant stated the following:
THE COURT: It is very clear from the audio that you threatened to kill her;
wouldn't you agree?
APPELLANT: Yes, I'll agree.
THE COURT: And it was very clear from the audio that you were hitting
her; wouldn't you agree?
APPELLANT: Yes, but I wasn't like - - like, hitting her to the point to kill
her, no.
THE COURT: I understand that, and you weren't charged with attempted
murder. But it was clear you were hitting her. And I also
heard a baby crying while that was happening.
11
APPELLANT: Yeah. Yeah, my son was there.
THE COURT: So apparently you were doing it in the presence of at least one
child, and you stand her and tell me you never did it in front
of the kids.3
(N.T.S. at 23). Appellant also admitted to using a stun gun on the victim, but denied leaving any
marks on her. Id at 23-24. This was refuted by the detective, who had photographs showing
marks on the victim that were caused by the stun gun. Id. at 24.
The court considered rehabilitative needs of Appellant, including the fact that there was
little to indicate he had made any attempt to change his lifestyle since committing crimes starting
at the age of fourteen. (N.T.S. at 28). Prior attempts at rehabilitation had failed, and the court
found Appellant was not amenable to treatment or rehabilitation. Id. at 29.
Finally, the court considered the penalties authorized by the Pennsylvania legislature for
the crimes committed, the guidelines of the sentencing code, and guidelines established by the
Pennsylvania sentencing commission. (N.T.S. at 26-27).
Pursuant to 42 Pa.C.S.A. §9725, and after considering all listed factors, the court found
that a sentence of total confinement was necessary because there was an undue risk Appellant
would commit another crime during a period of probation or partial confinement. (N.T.S. at 29).
Furthermore, Appellant had demonstrated he is not amenable to rehabilitation, he is in need of
correctional treatment that can be provided most effectively by his commitment to an institution,
he is a danger to society, and society needs to be protected. Id.
Additionally, the court identified on the record specific aggravating circumstances that
supported a sentence above the standard range of the sentencing guidelines. (N.T.S. at 29-30).
3
Appellant previously stated they had never argued or fought in front of the kids. (N.T.S. at 21 ).
12
In addition to the factors previously stated, the court specifically noted the brutality of these
vicious criminal attacks by Appellant and the fact that they were not isolated incidents. Id.
Essentially, the court found that Appellant had tortured his victim over a period of three years
causing bruises, scarring, and severe emotional trauma. Id. at 30. The court also referenced the
chilling audio recording made by Appellant, questioning how any human being could possibly
record themselves inflicting pain on another individual. Id. at 24-25, 30.
Moreover, the court imposed consecutive sentences on three counts, for which Appellant
objects. "[A] bald claim of excessiveness due to the consecutive nature of a sentence will not
raise a substantial question." Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013).
As the Superior Court stated in Commonwealth v. Caldwell, 117 A.3d 763 (Pa. Super. 2015):
A court's exercise of discretion in imposing a sentence concurrently or consecutively
does not ordinarily raise a substantial question. Rather, the imposition of consecutive
rather than concurrent sentences will present a substantial question in only the most
extreme circumstances, such as where the aggregate sentence is unduly harsh,
considering the nature of the crimes and the length of imprisonment.
Id. at 769 (citations and quotations omitted); see also Commonwealth v. Mastromarino, 2 A.3d
581, 587 (Pa. Super. 2010) (declining to find a substantial question based on excessive sentence
claim).
In Commonwealth v. Treadway, 104 A.3d 597 (Pa. Super. 2014), the Superior Court held
that the appellant did not raise a substantial question for an aggregate sentence of 100-200 years
of imprisonment given the gravity of the offenses, impact on the victim, appellant's failure to be
rehabilitated after a prior conviction, and the need to protect the public. Id. at 600. Conversely,
in Caldwell, supra, the Superior Court held that the appellant did present a substantial question
where he challenged his consecutive sentences as unduly excessive and claimed the court failed
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to consider his rehabilitative needs. 1 I 7 A.3d at 770; see also Commonwealth v. Raven, 97 A.3d
1244, 1253 (Pa. Super. 2014). Moreover, in Dodge, supra, the defendant set forth a substantial
question for review by claiming the imposition of consecutive sentences was disproportionate to
his crimes. Id. at 1271-73. However, the Superior Court in Dodge recognized that "this Court's
determination of whether an appellant has presented a substantial question in various cases has
been less than a model of clarity and consistency .... ", 77 A.3d 1272, n.8.
In this case, Appellant has alleged the court imposed consecutive sentences without
considering his mitigating factors and rehabilitative needs. Therefore, while not conceding a
substantial question, the court will address the merits of this issue pursuant to Caldwell.
The sentencing judge may determine whether a sentence should run consecutive to or
concurrent with another sentence being imposed based on the facts of a particular case.
Commonwealth v. Hill, 66 A.3d 365, 370 (Pa. Super. 2013); see also 42 Pa.C.S.A. §9721.
Imposition of consecutive rather than concurrent sentences rests within the trial court's
discretion. Commonwealth v. Harvard, 64 A.3d 690, 703 (Pa. Super. 2013).
In Commonwealth v. Mouzon, 828 A.2d 1126 (Pa. Super. 2003), the Superior Court held
that a sentencing court has discretion to not only deviate from sentencing guideline ranges, but
also to run sentences consecutive to one another. Id. at 1130. Thus, the Court found in Mouzon
that sentences which were above the guideline range and were made consecutive to one another
were not manifestly excessive where the aggregate sentence was equal to the significant amount
of crime committed by the defendant, the sentencing court witnessed the defendant throughout
the proceedings, the court studied the defendant's history, and the court considered the
defendant's prospective rehabilitation. Id. at 1130-31.
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In the present case, the aggregate sentence imposed was equal to the significant amount of
brutal crimes committed by Appellant over a period of years. The court had an opportunity to
review Appellant's conduct, listen to an audio-tape of Appellant actually beating the victim, and
witness his lack of remorse. The court studied Appellant's history as disclosed in the PSI.
Moreover, the court considered Appellant's poor prospects for treatment or rehabilitation. Thus,
as in Mouzon, the consecutive sentences were not manifestly excessive.
CONCLUSION
Pennsylvania sentencing guidelines are purely advisory, and in the present case they
served as a starting point for recommended minimum sentences. However, after considering the
circumstances of these horrendous crimes, which occurred over a period of several years, and the
impact those crimes had on the victim, the court found that aggravating circumstances far
outweighed any mitigating factors or rehabilitative needs offered by Appellant. Moreover, the
circumstances warranted consecutive sentences on three of the seven counts, so Appellant would
not be afforded a "volume discount" for his multiple crimes. For these reasons, Appellant's
sentence was not manifestly excessive or unreasonable and the sentence should be affirmed.
BY THE COURT
April 11, 2017
DATE DONALD R. TOTARO, JUDGE
ATTEST:
Copies: Karen L. Mansfield, Esquire, Assistant District Attorney
Christopher P. Lyden, Esquire, Attorney for Appellant
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