Com. v. Richards, J.

J-A14036-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUSTIN JOSEPH RICHARDS :
:
Appellant : No. 1606 WDA 2019
Appeal from the Judgment of Sentence Entered May 13, 2019
in the Court of Common Pleas of Washington County
Criminal Division at No(s): CP-63-CR-0002037-2017
BEFORE: SHOGAN, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 10, 2020
Justin Joseph Richards (“Richards”) appeals from the judgment of
sentence1 imposed following his convictions of strangulation and simple
assault.2 We affirm.
On July 4, 2017, at approximately 3:00 a.m., Richards called E.C. and
asked her to come over to his house. E.C. arrived at Richards’s house at about
4:00 a.m. Richards and E.C. went to Richards’s bedroom, which was located
in the basement, watched Netflix and engaged in consensual sex.
After some time, E.C. began to feel pain during intercourse and asked
Richards to stop. Richards stopped, but after a few minutes, attempted to re-
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1 We note that Richards’s sentence was executed on May 9, 2019, but not
entered on the docket until May 13, 2019. The caption has been corrected to
reflect the date the order was docketed.
2 18 Pa.C.S.A. §§ 2718(a)(1), 2701(a)(1).
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initiate intercourse, at which time E.C. rebuffed his attempts. Richards
became irate and pinned E.C. down, onto the bed. Richards attempted to
insert his penis into E.C.’s vagina; however, his attempts were unsuccessful
due to their respective positioning. E.C. again asked Richards to stop, but
instead, he inserted his penis into her anus.
E.C. began to scream, but Richards covered her mouth with his hand
and muffled her screams. E.C. responded by biting Richards’s finger, which
caused Richards to withdraw his hand from E.C.’s mouth. In response,
Richards punched E.C. in the back of the head several times. E.C. continued
screaming until Richards grabbed E.C.’s necklace in the back and pulled it,
muffling her screams again. At some point, Richards also had his hand around
her throat. E.C. testified that she was unable to breathe, or cry out, and may
have lost consciousness.
E.C. next remembered waking up and gathering her things to leave. At
approximately 5:30 a.m., E.C. drove home and showered. On the same day,
between the hours of 8:00 and 9:00 a.m., E.C. drove to the McDonald Police
Department where she detailed the events to Police Chief Dennis Ahlborn
(“Chief Ahlborn”). After her interview, E.C. went directly to Washington
Hospital, where hospital staff performed a rape kit.
Dr. Shawna Gelormino (“Dr. Gelormino”), an emergency room physician
at Washington Hospital, examined E.C.’s physical injuries. Dr. Gelormino
observed that E.C. had suffered bilateral subconjunctival hemorrhages, which
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are broken blood vessels in the white parts of the eye and show the
appearance of blood surrounding the iris and pupil. Dr. Gelormino noted that
this type of injury can occur from strangulation. Additionally, Dr. Gelormino
diagnosed E.C. as having a petechial hemorrhage, which was described as the
“next step” in the progression from a subconjunctival hemorrhage. The
petechial hemorrhage appeared as multiple little red dots that looked like
blood in the white parts of the eye. Dr. Gelormino explained that a petechial
hemorrhage can be caused by a more prolonged and severe strangulation.
Further, Dr. Gelormino observed linear marks of erythema and signs of
ecchymosis around E.C.’s neck. Dr. Gelormino explained that these types of
bruises would require significant force, and are consistent with E.C.’s
description of the strangulation.
Linda Yelenik (“Yelenik”), a Sexual Assault Nurse Examiner, performed
physical and sexual assault examinations of E.C. These consisted of
transcribing E.C.’s version of events, taking photographs, and observing and
documenting any injuries. Yelenik observed the same injuries as Dr.
Gelormino. Additionally, Yelenik collected buccal, vaginal, and rectal swabs.
The swabs collected by Yelenik were sent to the Pennsylvania State
Police Regional Laboratory, where they were tested. Jillian Scola (“Scola”), a
forensic scientist from the Pennsylvania State Police, conducted DNA analyses
on the vaginal and rectal swabs. Scola compared the swabs to the DNA
samples provided by E.C. and Richards. On the vaginal swab, Scola identified
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a mixture of two different individuals, which indicated that E.C. and Richards
could not be excluded as contributors. On the rectal swab, Scola was again
able to identify DNA from two individuals, but the swab was insufficient to
determine if the DNA from the second individual matched Richards.
On October 10, 2017, the Commonwealth charged Richards with the
above-mentioned offenses, as well as with rape, involuntary deviant sexual
intercourse, and sexual assault.3 After several continuances, Richards
proceeded to a jury trial on February 14, 2019.
Following the jury trial, Richards was found guilty of strangulation and
simple assault, and not guilty of the remaining offenses. The trial court
deferred sentencing in order for a pre-sentence investigation report (“PSI”) to
be prepared.
On May 9, 2019,4 Richards was sentenced to 20 to 48 months in prison
for the strangulation conviction. For the simple assault conviction, Richards
was sentenced to 4 to 24 months in prison. The trial court directed Richards’s
sentences to run consecutively, resulting in an aggregate term of 24 to 72
months in prison, plus fines and costs. Additionally, Richards was ordered to
pay $1,448.00 into the Victim Compensation Assistance Program.
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3 18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1), 3124.1.
4 The sentencing Order was not docketed until May 13, 2019.
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On May 16, 2019,5 Richards filed a Post-Sentence Motion. On June 27,
2019, Richards filed an Amended Post-Sentence Motion challenging the
sufficiency and the weight of the evidence supporting his convictions. Further,
Richards asserted that his sentence was unduly harsh and requested a
hearing. The hearing was held on August 12, 2019.6 On October 22, 2019,
the trial court denied Richards’s post-sentence Motions. The trial court issued
an Amended Sentencing Order on October 24, 2019, which corrected a clerical
error in the original document.
Richards filed a timely Notice of Appeal and a court-ordered Pa.R.A.P.
1925(b) Concise Statement of errors complained of on appeal. 7 The trial court
____________________________________________
5 In its Opinion, the trial court indicates that Richards timely filed an initial
Post-Sentence Motion on May 16, 2019. See Trial Court Opinion, 12/11/19,
at 5. We note that this Motion does not appear in the record, nor on the
docket. However, the trial court’s Order scheduling a hearing based upon the
Motion is both in the record and on the docket. Indeed, as noted infra, it
appears that despite this defect, the trial court was able to aptly address
Richards’s Post-Sentence Motion claims, despite the absence of these filings.
Therefore, we decline to find Richards’s claims waived.
6 The transcript of this proceeding is not included in the record.
7 In its Opinion, the trial court indicates that Richards timely filed his Concise
Statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
See Trial Court Opinion, 12/11/19, at 17. The docket also reflects its timely
filing. However, the Concise Statement was not made part of the record on
appeal, and Richards has not attached a copy of it to his appellate brief. See
Pa.R.A.P. 2111(d) (requiring the appellant to attach a copy of his Pa.R.A.P.
1925(b) concise statement as an appendix to the appellate brief). Despite
this defect, we decline to find Richards’s issues waived on this ground because
the trial court was able to review the Concise Statement and ably address
each claim.
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filed a responsive Pa.R.A.P. 1925(a) Opinion.
Richards now presents the following issues for our review:
1. Was there sufficient evidence to convict [Richards] of
[s]trangulation and [s]imple [a]ssault, where the Commonwealth
presented no credible evidence corroborating [E.C.]’s version of
events?
2. Was the verdict of guilty against the weight of the evidence as
to the charge [sic] of [s]trangulation and [s]imple [a]ssault,
where the jury found that [E.C.] was a family/household member
but also found that the strangulation was not a result of sexual
violence?
3. Did the [t]rial [c]ourt abuse its discretion when it sentenced
[Richards] in the aggravated range for both the charge [sic] of
[s]trangulation and [s]imple [a]ssault and ran the sentences at
both counts consecutively?
Brief for Appellant at 10.
In his first claim, Richards argues that the Commonwealth failed to
present sufficient evidence to sustain the convictions of strangulation and
simple assault. Id. at 25. Initially, Richards asserts that the Commonwealth
failed to present evidence corroborating E.C.’s claims that she was strangled
by Richards and that Richards punched E.C. in the head. Id. Regarding the
strangulation conviction, Richards acknowledges E.C.’s testimony that she was
strangled by Richards. Id. at 26. However, Richards contends that the
injuries on E.C.’s neck “could have” been caused by “anything [that] affect[s]
blood flow[,] … which can include severe coughing.” Id. Further, Richards
asserts that the Commonwealth failed to prove that E.C.’s injuries were caused
by strangulation. Id.
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Regarding the simple assault conviction, Richards acknowledges E.C.’s
testimony that she was punched in the head several times by Richards. Id.
However, Richards contends that the Commonwealth failed to provide
evidence that E.C. received treatment for the punches to the back of her head.
Id. Further, Richards contends that a conviction of summary harassment,
rather than simple assault, would have been more appropriate. Id.
When considering a challenge to the sufficiency of the evidence, we
determine
whether[,] viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder[,] unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the finder of fact[,] while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, or part or none of the evidence.
Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation
omitted).
The Crimes Code provides that “[a] person commits the offense of
strangulation if the person knowingly or intentionally impedes the breathing
or circulation of the blood of another by: (1) applying pressure to the throat
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or neck; or (2) blocking the nose and mouth of the person.” 18 Pa.C.S.A. §
2718(a). Additionally, “[i]nfliction of a physical injury to a victim shall not be
an element of the offense.” Id. § 2718(b).
The Crimes Code provides that “[a] person is guilty of assault if he: (1)
attempts to cause or intentionally, knowingly or recklessly causes bodily injury
to another.” Id. 2701(a)(1); see also Commonwealth v. Martuscelli, 54
A.3d 940, 948-49 (Pa. Super. 2012) (stating that “it is sufficient to support a
conviction [of simple assault] if the Commonwealth establishes an attempt to
inflict bodily injury[,]” and that such attempt may be shown by circumstances
reasonably suggesting that a defendant intended to cause injury). “Bodily
injury” is defined as “[i]mpairment of physical condition or substantial pain.”
18 Pa.C.S.A. § 2301.
In its Opinion, the trial court addressed Richards’s sufficiency claims as
follows:
Upon review of the testimony and evidence presented at
trial, th[e trial court] finds that the Commonwealth has provided
sufficient evidence to sustain [Richards]’s conviction[s] and has
established each material element of the offenses beyond a
reasonable doubt. In regard to the charge of [s]trangulation,
[E.C.], testified that [Richards] positioned his body behind her,
grabbed the chain of her necklace, and then “twisted [the
necklace] in the back and started pulling on it and also had his left
hand around [her] throat in the front.” [E.C.] explicitly testified
that she could not breathe at that time. Indeed, [E.C.] [testified
that she] “was scratching at the wall, the basement wall, just
crying and was banging on it to try and let [Richards] know that
[she] could not breathe.” Accordingly, [E.C.]’s testimony alone
establishes that [Richards] is guilty of [s]trangulation, for
[Richards] knowingly or intentionally impeded [E.C.]’s breathing
by applying pressure to her throat and neck.
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Moreover, although the victim need not lose consciousness
or sustain physical injuries to prove [s]trangulation, [E.C.]
experienced both. [E.C.] testified that after [Richards] strangled
her with her necklace, she “passed out.” … Second, the
Commonwealth provided a plethora of evidence regarding [E.C.]’s
physical injuries she suffered due to [Richards] strangling her.
[The] Commonwealth’s Exhibits 1-4 illustrated the bruising on
[E.C.]’s neck that resulted from [Richards] strangling her with the
necklace[].
Furthermore, the Commonwealth presented testimony from
Dr. Gelormino, who went into great detail regarding the severity
of [E.C.]’s physical injuries; namely that [E.C.] suffered bilateral
subconjunctival hemorrhages, a petechial hemorrhage, and
“linear marks of erythema from reported choking” around her
neck. Not only did Dr. Gelormino opine that all of [E.C.]’s injuries
could occur from strangulation, but [also] that “petechial
hemorrhages [would result] from a more prolonged or more
severe strangulation-type injury” and that linear marks of
erythema, commonly known as developing bruising, “would
require significant force, and it [was] consistent with [E.C.’s]
description[.]” Ultimately, Dr. Gelormino’s expert opinion was
that [E.C.]’s aforementioned injuries were [] caused by
strangulation.
The Commonwealth also introduced a number of
photographs that were taken while [E.C.] was at [Washington
Hospital]. These photographs included troublesome illustrations
of [E.C.]’s injuries, such as her blood[-]filled eyes, the blood[-
]filled dots surrounding her eyes, and the developing bruising
around her neck. Later, [] Yelenik corroborated both [E.C.’s] and
Dr. Gelormino’s testimony, [when she] indicat[ed] that she also
observed [E.C.]’s physical injuries. Accordingly, th[e trial c]ourt
finds that the Commonwealth has sustained its burden and that
all of the material elements of [s]trangulation have been proven
beyond a reasonable doubt.
Regarding the charge of [s]imple [a]ssault, the testimony
and evidence presented at trial clearly and unequivocally indicates
that [Richards] is guilty. In addition to [Richards] strangling
[E.C.], and [E.C.] suffering significant injuries therefrom, [E.C.]
also stated that [Richards] punched her in the back of the head
“about three or four times.” … Furthermore, as was previously
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stated, [E.C.] suffered numerous bodily injuries from [Richards],
after [Richards] grabbed her neck and twisted the chain of her
necklace[,] she lost consciousness. Accordingly, th[e trial c]ourt
finds that the Commonwealth has presented sufficient evidence to
sustain [Richards]’s conviction for [s]imple [a]ssault.
See Trial Court Opinion, 12/11/19, at 19-21 (citations omitted).
We agree with and adopt the trial court’s well-reasoned and thorough
Opinion. See id. Moreover, to the extent that Richards contends that the
Commonwealth failed to prove that E.C. suffered actual injury, his argument
is without merit for the reasons stated by the trial court. See id. Additionally,
even if the Commonwealth’s evidence did not establish actual injury, it
certainly established an attempt to cause injury, where Richards punched E.C.
several times in the back of the head. See Martuscelli, supra; see also
Commonwealth v. Richardson, 636 A.2d 1195, 1196 (Pa. Super 1994)
(stating that the Commonwealth had demonstrated an attempt to cause bodily
injury where the defendant had punched a police officer in the face, even
though the officer received no medical treatment). Thus, to the extent that
Richards contends that the Commonwealth failed to prove that E.C. suffered
an actual injury, his argument is without merit.
In his second claim, Richards argues that his convictions of simple
assault and strangulation were against the weight of the evidence, “where the
jury found that [E.C.] was a family/household member but also found that the
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strangulation was not a result of sexual violence.” 8 Brief for Appellant at 26-
27. Richards asserts that if the jury believed E.C.’s testimony, the jury would
also have believed that the strangulation was a result of sexual violence. Id.
at 27. Additionally, Richards argues, the convictions of simple assault and
strangulation are intertwined because the Criminal Information states that
“[Richards] did strangle [E.C.], causing [E.C.] to suffer extensive bruising
and/or petechial hemorrhages….” Id. Richards contends that E.C.’s
testimony cannot be believed because the bruising on her neck was not
consistent with her testimony. Id. at 28.
Here, Richards fails to develop his claim with citations to the record or
relevant legal authority. See Pa.R.A.P. 2119(a); see also Commonwealth
v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (stating that “where an appellate
brief fails to provide any discussion of a claim with citation to relevant
authority[,] or fails to develop the issue in any other meaningful fashion
capable of review, that claim is waived.”). It is not the role of this Court to
“formulate [an a]ppellant’s arguments for him.” Id. at 925. Richards makes
bald claims that his convictions of simple assault and strangulation are
intertwined and are, thus, against the weight of the evidence, without citing
____________________________________________
8 Richards bases this claim on his interpretation of 18 Pa.C.S.A. § 2718(d)(2),
which provides that a violation of the statute constitutes a second-degree
felony if committed “against a family or household member as defined in 23
Pa.C.S.A. § 6102 (relating to definitions)[.]” As we will discuss infra, [E.C.]
met the statutory definition of “family or household member.”
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to any statutes or case law supporting his argument. Additionally, Richards
baldly asserts that the jury could not have found E.C. to be a family or
household member, but includes no development or discussion in relation to
his claim. To the extent that Richards includes photographs in his brief and
places phrases in quotation marks, he does not direct this Court to the place
in the record where these photographs or phrases may be found. Indeed,
none of the photographs in Richards’s brief were included in the record before
this Court. Because Richards fails to adequately develop his second issue for
review, Richards’s challenges to the weight of the evidence are waived. See
Johnson, supra.
Moreover, to the extent that Richards challenges the jury’s finding that
E.C. was a family/household member, such a claim lacks merit. The
strangulation statute provides, in relevant part, as follows:
§ 2718. Strangulation
***
(d) Grading.
***
(2) A violation of this section shall constitute a felony of the
second degree if committed:
(i) against a family or household member as defined in 23
Pa.C.S.[A.] § 6102 (relating to definitions)[.]
18 Pa.C.S.A. § 2718(d)(2)(i). According to 23 Pa.C.S.A. § 6102(a), “[f]amily
or household members” are defined as “[s]pouses or persons who have been
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spouses, persons living as spouses or who lived as spouses, parents and
children, other persons related by consanguinity or affinity, current or
former sexual or intimate partners or persons who share biological
parenthood.” 23 Pa.C.S.A. § 6102(a) (emphasis added); see also Evans v.
Braun, 12 A.3d 395, 399 (Pa. Super. 2010) (stating that parties who were
involved in a “dating relationship” fall within Section 6102’s definition of a
family or household member).
At trial, both E.C. and Richards testified that they were, at many times
previous, intimate partners and were “on and off sexually.” See N.T. (Jury
Trial), 2/14/19, at 25, 211; see also D.H. v. B.O., 734 A.2d 409, 410 (Pa.
Super. 1999) (stating that parties who were in month-long sexual relationship
fell within 23 Pa.C.S.A. § 6102(a) definition of a family or household member).
Accordingly, even if Richards’s challenges to the weight of the evidence were
not waived, we would afford him no relief.
In his final claim, Richards contends that the trial court abused its
discretion when it sentenced him in the aggravated range for each offense and
directed his sentences to run consecutively. Brief for Appellant at 33-34.
Richards challenges the discretionary aspects of his sentence, from
which there is no absolute right to appeal. See Commonwealth v.
Sunealitis, 153 A.3d 414, 420 (Pa. Super. 2016). Rather, when an appellant
challenges the discretionary aspects of his sentence, we must consider his
brief on this issue as a petition for permission to appeal. Commonwealth v.
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Yanoff, 690 A.2d 260, 267 (Pa. Super. 1997); see also Commonwealth v.
Tuladziecki, 522 A.2d 17, 18 (Pa. 1987). 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
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 advance[s] a colorable
argument that the sentencing judge’s actions were either: (1)
inconsistent with the specific provisions of the Sentencing Code;
or (2) contrary to the fundamental norms which underlie the
sentencing process
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (quotation
marks and some citations omitted).
Here, Richards timely filed a Notice of Appeal, raised his discretionary
aspects of sentencing claim in his Post-Sentence Motion, and properly included
a 2119(f) Statement in his brief. Therefore, we will determine whether there
is a substantial question requiring us to review the discretionary aspects of his
sentence.
In his Rule 2119(f) Statement, Richards argues that the trial court
abused its discretion imposing consecutive, aggravated-range sentences. See
Brief for Appellant at 33-34. Richards claims that the trial court impermissibly
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considered the gravity of the offense, where it was “already considered in the
Pennsylvania Sentencing Guidelines … and cannot be considered twice.” Id.
at 30. Additionally, Richards asserts that the trial court ran his sentences
consecutively for the sole purpose of incarcerating him for a longer period of
time. Id. at 31. Richards further takes issue with the trial court’s
characterization of the incident as a “brutal assault,” and claims that this
characterization is incorrect because there was “no corroborating evidence,”
and “the Commonwealth did not charge [Richards] with aggravated assault.”
Id. at 31-32. Finally, Richards contends that the trial court improperly
admonished him for failing to take responsibility for the crimes.9 Id. at 32.
In support of this final point, Richards asserts that people are wrongfully
convicted every day, and that it is impermissible for a trial court to admonish
a defendant’s failure to take responsibility where the defendant never
admitted to committing the crimes. Id.
A court’s exercise of discretion in imposing a sentence concurrently or
consecutively does not ordinarily raise a substantial question.
Commonwealth v. Mastromarino, 2 A.3d 581, 587 (Pa. Super. 2010).
Rather, the imposition of consecutive rather than concurrent sentences will
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9 With regard to his contention that the sentencing court relied on an
impermissible factor at sentencing, Richards cites Commonwealth v.
Bowen, 975 A.2d 1120 (Pa. Super. 2009), for the proposition that a “trial
court’s admonishment emphasizing defendant’s failure to acknowledge
responsibility for crimes he never admitted to committing at sentencing was
improper.” Brief for Appellant at 38.
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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.” Commonwealth v. Lamonda,
52 A.3d 365, 372 (Pa. Super. 2012).
To make it clear, a defendant may raise a substantial question
where he receives consecutive sentences within the guideline
ranges if the case involves circumstances where the application of
the guidelines would be clearly unreasonable resulting in an
excessive sentence; however, 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) (emphasis
omitted).
With respect to Richards’s contentions that the trial court relied upon an
impermissible factor, i.e., his purported failure to take responsibility, in
imposing an unreasonable sentence, we conclude that he has raised a
substantial question for our review. See Commonwealth v. Downing, 990
A.2d 788, 792-93 (Pa. Super. 2010) (claims that the sentencing court relied
on an improper factor in imposing sentence can raise a substantial question).
Additionally, Richards’s claim that the trial court impermissibly “double-
counted” the gravity of the offense when it sentenced him also raises a
substantial question. See Commonwealth v. Goggins, 748 A.2d 721, 727
(Pa. Super. 2000) (stating that a claim that the sentencing judge double-
counted factors included in the sentencing guidelines raises a substantial
question). Thus, we will review the merits of Richards’s claim.
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We adhere to the following standard of review:
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 law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Robinson, 931 A.2d 15, 26 (Pa. Super. 2007) (citation
omitted).
“In every case in which the court imposes a sentence for a felony … the
court shall make as part of the record, and disclose in open court at the time
of sentencing, a statement of the reasons or reasons for the sentence
imposed.” 42 Pa.C.S.A. § 9721(b); see also Commonwealth v. Mouzon,
812 A.2d 617, 620-21 (Pa. 2002) (plurality). The Sentencing Code also
provides that “the [trial] 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.” 42 Pa.C.S.A. § 9721(b); see also Commonwealth v.
McClendon, 589 A.2d 706, 713 (Pa. Super. 1991) (stating that “the court
should refer to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation.”). “A sentencing court may
consider any legal factor in determining that a sentence in the aggravated
range should be imposed. … [T]he sentencing judge’s statement of reasons
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on the record must reflect this consideration….” Commonwealth v.
Stewart, 867 A.2d 589, 592-93 (Pa. Super. 2005) (citation omitted).
Further, the trial court must consider the Sentencing Guidelines.
Commonwealth v. Sheller, 961 A.2d 167, 190 (Pa. Super. 2008).
Here, importantly, the trial court did not justify its sentencing scheme
based solely, or even primarily, on Richards’s lack of remorse or failure to take
responsibility for his crimes. At the sentencing hearing, the trial court placed
the following reasons on the record:
There are several factors the [c]ourt must consider before
imposing [a] sentence. Among those factors are the need to
protect society; the need for deterrence; the particular
circumstances of the offense; the [d]efendant’s character; and
whether the defendant is remorseful.
The [c]ourt is aware of the individualized sentencing
schemes in Pennsylvania, and the [S]entencing [G]uidelines,
which take into account [Richards]’s prior record score and the
offense gravity score assigned to each crime.
***
In imposing [this] sentence, the [c]ourt is taking into
consideration the Pennsylvania [S]entencing [G]uidelines; the
thorough [PSI]; the victim impact statement given by [E.C.]; the
character references given by Eric Miller, Martha Loutes, Debbie
Fronaro, Melissa Brandt, Dianna Conn, Renee Bird, Nancy
Veltham, Charles Robinson[,] and Carol Nation; the rehabilitative
needs of [Richards]; and the particular circumstances and gravity
of the offense.
After carefully weighing all [of] these factors, the [c]ourt
concludes that a sentence of total confinement is appropriate, and
any lesser sentence would depreciate the seriousness of these
offenses.
***
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The [c]ourt notes for the record that this sentence is in the
aggravated range of the [S]entencing [G]uidelines, and there are
several reasons the [c]ourt has sentenced [Richards] in the
aggravated range.
At trial, this [c]ourt had the opportunity to hear from both
the emergency room physician and the emergency room nurse,
who examined [E.C.] hours after this assault occurred, and they
detailed her injuries. Also at trial, the [c]ourt viewed numerous
photos vividly depicting the extent of [E.C.]’s injuries, and her
injuries were quite extensive. This was clearly a brutal assault
perpetrated upon [E.C.], and [she] is lucky to have survived.
As expressed in her victim impact statement, [E.C.] has
suffered greatly as a result of this assault. She’s suffered both
physically and mentally. And while the physical scars heal over
time, the emotional scars may last a lifetime.
Finally, [Richards] does not appear to be remorseful for his
conduct and has not taken any responsibility for his actions.
N.T. (Sentencing Hearing), 5/9/19, at 22-24, 25-26.
Our review confirms that the trial court considered all the relevant
sentencing factors and set forth its reasons for imposing aggravated-
sentences. See 42 Pa.C.S.A. § 9721(b). Therefore, we cannot conclude that
the trial court’s sentence was based solely upon the trial court’s statement
that Richards did not appear to take responsibility for his crimes or
demonstrate remorse. Indeed, in his brief, Richards acknowledges that the
trial court considered several other factors in fashioning his sentence,
including, but not limited to, the victim impact statement, and the offense
gravity scores of the respective offenses. Brief for Appellant at 33-34, 36-39.
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To the extent that Richards relies on Bowen, we note that in Bowen,
this Court declined to vacate the sentence based on the trial court’s actions.
Bowen, 975 A.2d at 1127. Rather, this Court opined that significant other
facts were present and articulated by the trial court in justifying its sentence.
Id.; see also Commonwealth v. P.L.S., 894 A.2d 120, 133 (Pa. Super.
2006) (stating that even if the trial court considered an inappropriate factor
at sentencing, “the court offered significant other support for sentencing in
excess of the guidelines[.]”).
Further, regarding Richards’s contention that the trial court improperly
considered the gravity of the offense, the transcript from the sentencing
hearing does not support Richards’s contentions. See N.T. (Sentencing
Hearing), 5/9/19, at 22-24, 25-26. Our review of the record indicates that
the trial court complied with the requirements of 42 Pa.C.S.A. § 9721(b) when
it imposed Richards’s sentence. See id.; see also 42 Pa.C.S.A. § 9721(b);
Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002) (stating that
“a court is required to consider the particular circumstances of the offense and
the character of the defendant.”).
Moreover, the trial court had the benefit of a PSI, which the trial court
expressly stated it had considered. N.T. (Sentencing Hearing), 5/9/19, at 23;
Trial Court Opinion, 12/11/19, at 29; Commonwealth v. Devers, 546 A.2d
12, 18 (Pa. 1988) (explaining that where a sentencing judge considered the
PSI, it is presumed that they are “aware of relevant information regarding the
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defendant’s character and weighed those considerations along with mitigating
statutory factors.”). Therefore, we conclude that the trial court did not abuse
its discretion in imposing Richards’s sentence and that Richards’s challenge to
the discretionary aspects of his sentence is without merit. Based upon the
foregoing, we discern no abuse of the trial court’s discretion in imposing
Richards’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/10/2020
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