Com. v. Schaible, C.

J. A11033/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 1003 EDA 2014
:
CATHERINE SCHAIBLE :
Appeal from the Judgment of Sentence, February 19, 2014,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0007633-2013
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 1163 EDA 2014
:
HERBERT SCHAIBLE :
Appeal from the Judgment of Sentence, February 19, 2014,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0007634-2013
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND FITZGERALD,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 15, 2015
In these consolidated cases, the Commonwealth appeals from the
judgments of sentence imposed on Herbert Schaible and Catherine Schaible,
husband and wife, on February 19, 2014, by the Court of Common Pleas of
Philadelphia County, as inconsistent with the protection of the public, the
* Former Justice specially assigned to the Superior Court.
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gravity of the offense, and the rehabilitative needs of the appellees. We
affirm.
We adopt the factual history as summarized by the trial court:
On April 18, 2013, seven month old Brandon
Schaible died at his home on Rhawn Street in the
City and County of Philadelphia. The medical
examiner determined that Brandon had suffered
from bacterial pneumonia, severe dehydration and a
Group B streptococcus infection. The combination of
these conditions caused Brandon’s death, and the
manner of Brandon’s death was ruled a homicide.
(N.T., 11/14/13, pp. 23-25; Commonwealth Exhibit
C-1).
Following Brandon’s death, the police
interviewed his parents, Catherine and Herbert
Schaible. Catherine Schaible told police that she had
taken Brandon to a doctor shortly after his birth.
Other than that doctor visit, Brandon had not seen a
doctor prior to his death. Approximately one week
before Brandon’s death, he exhibited signs of illness.
During that time, Brandon vomited, had difficulty
eating and sleeping, and his breathing became
progressively labored. Mrs. Schaible stated that she
and her husband did not seek medical attention for
Brandon because of their religious beliefs. Instead,
the Schaibles contacted various family members and
their pastor, all of whom gathered and prayed for
Brandon. Even when Brandon’s condition grew
grave, the family continued to pray and did not seek
medical attention. Mrs. Schaible acknowledged that
the decision to forego medical treatment was a
violation of the conditions of her probation, but
believed that Brandon would be healed by faith.
(N.T., 11/15/13, pp. 25-29; Commonwealth
Exhibit C-2).
Herbert Schaible’s version of events echoed
that of his wife. Mr. Schaible told police that
Brandon exhibited signs of illness several days
before his death. Mr. Schaible stated that he and his
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wife did not seek medical attention for Brandon
because it was against their religious beliefs, and
that it would have been considered a sin to seek
medical assistance rather than trust in God for
Brandon’s healing. (N.T., 11/14/13, pp. 29-34;
Commonwealth Exhibit C-3).
Trial court opinion, 8/7/14 at 3-4.
On November 14, 2013, the defendants pled nolo contendere to
third-degree murder, endangering the welfare of a child (“EWOC”), and
criminal conspiracy. The Commonwealth sought a sentence of 8 to 16 years’
imprisonment for each defendant for third-degree murder. This
recommendation was at the bottom end of the standard range of the
sentencing guidelines. With a prior record score of 2 and an offense gravity
score of 14, the sentencing guidelines recommended a minimum sentence of
8 to 40 years’ imprisonment in the standard range, and recommended a
sentence of 7 years’ imprisonment at the lowest end of the mitigated range.
The potential range of sentences for the other offenses, EWOC and criminal
conspiracy, were not addressed at sentencing. The court deferred
defendants’ sentencing hearing and ordered a pre-sentence investigation.
Catherine Schaible remained free on bail pending sentencing, while
Herbert Schaible remained in custody at the Curran Fromhold Correctional
Facility in Philadelphia.
On February 19, 2014, the trial court sentenced the defendants to
concurrent prison terms of 3½ to 7 years followed by 30 months’ reporting
probation. In addition, the trial court ordered that the defendants not be
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permitted to make any future decisions regarding the medical care of their
children.1 Finally, the court sentenced the defendants to prison terms of 3½
to 7 years’ imprisonment and 30 months’ reporting probation for violating
the terms of their probation (cases docketed at CP-51-CR-0012965-2009 for
Catherine Schaible and CP-51-CR-0012966-2009 for Herbert Schaible).2 The
charges related to the violation of probation (“VOP”) cases, involuntary
manslaughter, EWOC, and criminal conspiracy, arose from the 2010 death of
another child, Kent Schaible. That case, like the instant matter, involved the
failure of the defendants to seek medical attention for Kent. That failure led
to Kent’s death. On February 2, 2011, the defendants pled guilty. The
Honorable Carolyn Engle Temin sentenced both defendants to 10 years’
probation and directed that, as a condition of their probation, the defendants
provide each of their other children with routine medical check-ups at least
once a year and seek medical attention for their children should they
become ill. The VOP sentences were ordered to run concurrently with the
sentences imposed in the instant case.
The Commonwealth filed a timely motion to modify sentence. On
March 14, 2014, the trial court denied the Commonwealth’s motion after
1
Family Court Judge Allan L. Tereshko presided over the dependency
proceedings related to the defendants and their six minor children. Each
child had been placed in a foster home and had periodic visits with his or her
siblings.
2
Supervision of the defendants’ cases was transferred to the Honorable
Benjamin Lerner who presided over the instant matter.
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hearing further argument from all counsel. Before denying the motion, the
court placed on the record a detailed statement of its reasons for departing
downward from the sentencing guidelines.
On March 25, 2014, the Commonwealth filed a notice of appeal and a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.,
Rule 1925(b), 42 Pa.C.S.A. The Commonwealth raised the following issue:
“Did the lower court abuse its discretion in imposing a sentence that is
inconsistent with [the] protection of the public, the gravity of the offense,
and the rehabilitative needs of the offender, and which in its practical effect
imposes no penalty at all for the murder of a child?” (Id.) The
Commonwealth has challenged the discretionary aspects of defendants’
sentences. We begin by addressing our standard of review in sentencing
matters:
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. Hoch, 936 A.2d 515, 517-518
(Pa.Super. 2007) (citation omitted).
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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. See Hoch, 936 A.2d at 518 (citation
omitted). An appellant must satisfy a four-part test
to invoke this Court’s jurisdiction when challenging
the discretionary aspects of a sentence.
[W]e conduct a four-part analysis to
determine: (1) whether appellant has
filed a timely notice of appeal;
(2) whether the issue was properly
preserved at sentencing or in a motion to
reconsider and modify sentence;
(3) whether appellant’s brief has a fatal
defect; and (4) whether there is a
substantial question that the sentence
appealed from is not appropriate under
the Sentencing Code.
Commonwealth v. Moury, 992 A.2d 162, 170
(Pa.Super. 2010) (citations omitted).
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265-1266 (Pa.Super.
2014).
Our review of the certified record confirms the Commonwealth’s appeal
is timely,3 the issue was preserved in the court below, and the required
Pa.R.A.P. 2119(f) statement has been included. Therefore, we must
determine whether reasons given in the Rule 2119(f) statement raise a
substantial question. Here, the Commonwealth identified the “overarching
3
The record in this case appears to reflect that the Commonwealth’s post-
sentence motion was filed one day late. However, in response to this court’s
Rule to Show Cause on the issue of timeliness, the Commonwealth
responded that the Philadelphia Court of Common Pleas was closed on
Monday, March 3, 2014 due to inclement weather conditions. The post-
sentence motion was filed on Tuesday, March 4, 2014.
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issue” in this matter as whether the trial court abused its discretion for
imposing an excessively lenient sentence that is inconsistent with the
sentencing norms. A claim that the trial court has imposed an excessively
lenient sentence raises a substantial question. See Hoch, 936 A.2d at 518.
In addition to the sentence being lenient, the Commonwealth raises
sub-arguments that the sentence depreciates the gravity of the offense and
fails to properly consider the defendants’ failure to be rehabilitated along
with the continuing danger they pose to their surviving children. See
Commonwealth v. Johnson, 873 A.2d 704, 708 (Pa.Super. 2005) (“A
substantial question exists where an appellant sets forth a plausible
argument that the sentence . . . is contrary to the fundamental norms
underlying the sentencing process.”), appeal denied, 887 A.2d 231 (Pa.
2005). The Commonwealth also claims the sentencing court relied on
mistaken or improper factors to depart from the guidelines. All of these
claims raise a substantial question. See Commonwealth v. Downing, 990
A.2d 788, 792 (Pa.Super. 2010) (claim that sentencing court relied on
improper factors and inaccurate factors presents substantial question for
review); Commonwealth v. Sims, 728 A.2d 357, 359 (Pa.Super. 1999)
(claim that factors court relied on to deviate from guidelines were
unreasonable presented a substantial question).
We begin our analysis with the trial court’s statements of reasons at
the sentencing hearing:
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What I intend to do with the sentence is
provide for a period of incarceration followed by
probation, at the end of which you will be able to
resume whatever contact with your children the
parties and the law permit but which will enable your
youngest child to be old enough so that if for some
reason you ever got control of this issue again, this
issue of medical care, all of your children will be old
enough to make these kinds of decisions for
themselves.
I’m departing downward in this sentence for
two reasons. One is, of course, the standard
criminal justice reason which is that you accepted
responsibility and early on entered pleas of nolo
contendere. The other and more important is the
one that I addressed earlier, and that is you are not
the kind of parents generally and this is not the kind
of family that ought to be or needs to be torn apart
forever. In fact, I believe the contrary is true, your
children need you in their lives at some level in some
way, you need your children in your lives at some
level in some way. The sentence should not prevent
that from happening, but what must be prevented
from happening is that either one of you ever again
have the right to make the kind of determinations
about your children’s lives that you made for Kent
and for Brandon.
So the sentence of the Court is as follows. For
both defendants on all of the charges concurrently
and on the probation violations concurrently,
because you’re in violation of your probation, your
probation has been revoked and I’m giving you the
same sentences for the probation violation as for
these new offenses. I’m sentencing you each to a
term of incarceration in the state prison system of
not less than three and a half, nor more than seven
years. That will be followed by a period of
30 months[’] probation. That probation will be under
the supervision of the State Board of Probation and
Parole because they’re the ones who will be
supervising your parole once you are paroled. The
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mandatory costs are imposed. There are no other
charges that need to be nolle prossed.
Sentencing hearing, 2/19/14 at 72-74.
On March 14, 2014, the trial court heard argument from all counsel
regarding the Commonwealth’s motion to modify (increase) the sentences of
the defendants. At the end of the hearing, the trial court addressed the
Commonwealth’s allegations as follows:
My responsibility in this case is to provide case
specific reasons for the downward departure. And I
believe, especially after rereading the notes of
testimony from the sentencing hearing, I believe that
I did that.
l want to address specifically a couple of
points[,] and I'm going to start with what
Ms. Pescatore [the Assistant District Attorney] raised
last because that is the one point on which perhaps
there ought to be more clarity.
When I imposed this sentence, aware as I was
of the Family Court proceedings thus far, it was my
intention and my understanding that the Schaibles
probably will never have custody of their children
again. And if they ever did, and that is not
something that is in this Court[’]s power, that’s
within the jurisdiction of the Dependency Court
Judge in Family Court.
But if they did[,] it seemed clear to me when I
imposed the sentence that that would never even be
considered not until after their sentence in the
criminal cases was completed. Not until after
whatever time happens to pass before they are
released on parole but until ten years plus thirty
months.
And one of the things that I considered in that
sentence was that the Schaibles[’] youngest child[,]
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at the end of that period of time[,] will be fourteen
years old.
And even in the extremely unlikely event that
the Schaibles were given the right to regain custody
by a Family Court Judge, at that point all of their
children, including the youngest one, would be old
enough to have a major say in their own medical
care.
However, if that’s not clear enough from my
original sentence, let me clarify the conditions of any
parole and probation which is where I have
jurisdiction. To make it clear that during this period
of time[,] ten years plus thirty months[,] the
Schaibles will not be permitted to make any
decisions regarding the medical care of their
children.
That was the original intention of my
sentence[,] and if I did not make it clear enough
then[,] I’ll make it clear enough now.
With regard to the other points raised by the
Commonwealth[’]s request, first of all Ms. Pescatore
points out that I did not impose separate sentences
for the new offense and the violation of probation
and that is correct. But that does [not] mean[,] as
the Commonwealth suggests[,] that the violation of
probation does not figure in to the sentence that I
imposed.
Even in the example that the Commonwealth
gave about a defendant who was on probation or
parole for a gunpoint robbery and was convicted of
another one, if I have both the open case and the
probation violation, as is the case here, I’m going to
impose one sentence.
The decision isn’t really how much time is due
on the probation violation and how much time is due
for the new case. In my view[,] the decision is
that[,] for the sentencing Judge[,] is how much
prison time, what is the length of the prison
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sentence that the Judge thinks is fair and just under
all the circumstances of the case.
So, it’s really not accurate to suggest that I did
not consider not only that there were new offenses
but that these new offenses constituted a direct
violation of the Schaibles[’] probation[,] because I
did.
So, that brings us to the final point[,] which is
the length of the sentence. And as Ms. Pescatore
says[,] reasonable minds can differ.
I want to make it clear[,] as I thought I did at
the last hearing[,] that from this Court[’]s point of
view[,] imposing an appropriate sentence involves
not only the specific offenses, how they are labeled,
what their maximums are and what the guidelines
are, but it involves a specific examination of all of
the facts and circumstances surrounding that
offense.
Not every robbery is the same. Not every
assault is the same. Not every third degree murder
is the same. And it’s the Court’s responsibility to
look beyond the labeling of the offense and the
guidelines. That’s why the guidelines are advisory,
to look at the specific facts and circumstances of a
particular offense.
It is also the Court’s responsibility not merely
to sentence[,] as I said at the sentencing hearing[,]
so as to “make the punishment fit the crime”.
Our sentencing structure calls for a
consideration of all of the facts and circumstances
surrounding the defendants, and in this case the
defendants[’] children, so that one can make the
punishment not only fit the crime but the best of my
ability make the punishment fit the criminals.
This is unlike any other child endangerment,
child homicide by parents or caregivers that this
Court has ever seen. And it’s unlike it not in my
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view because of the so-called religious reasons for
the Schaible[s’] action.
I want to make it clear again[,] as I thought I
did last week. I give no credence to that. I pay no
attention to that. It’s offensive to me as a Judge and
as a human being when people use extremist ideas
about the teachings of any religion[,] including my
own[,] to justify horrendous[,] even criminal[,]
conduct.
So in case there is any misunderstanding[,] it
is not the so-called religious basis for the
Schaible[s’] activities here that lead me to the
sentence that I imposed.
But I heard the testimony from Ms. Trotty. I
saw the videos. I know what all the evidence in the
case is. These are not parents who fit the mold of
either the standard endangering the welfare of a
child caregiver or fit the mold of the standard
aggravated assault or murder prosecution involving
caregivers and children.
In my view, in my judgment, although what
happened here as well []as what happened with Kent
is inexcusable, not merely negligent but criminal and
justifies a sentence.
These actions were not performed by uncaring,
unloving parents. On the contrary[,] one need only
listen to Ms. Trotty’s testimony and [see] that video
and look at all the other evidence in the case about
the Schaible[s’] relationship with their children to
understand that as that neighbor I referred to said
with one exception they’re wonderful, caring, loving
people. Well[,] the exception puts them in state
prison and it ought to[,] as far as I’m concerned.
But the exception also affects[,] in my view[,]
how long they ought to be in state prison and how
long they should be, they and their children, should
be separated from each other.
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This is an unusual situation. The Schaible[]s
should never have custody of their children
especially when they’re young because of this one
major area of parenting in which they have so
horribly failed.
But in every other area of parenting[,] their
children and they should be able to resume their
relationship not just for them but because it’s in the
children’s best interest, within a reasonable period of
time.
People toss around years in sentencing
sometimes as if they were jellybeans. Well that’s
not the case. I believe that a state prison sentence
of the length that I imposed is a substantial amount
of prison time for Herbert and Catherine Schaible.
And I spent a lot of time considering all of the
elements that I believe go into an appropriate
sentence. That is my best judgment.
Again, reasonable people can differ. The
Commonwealth has a right to an appeal. My
sentence is likely to be reviewed by a higher court. I
understand that, I accept that, I agree that that’s
the way it ought to be.
But I still think that considering all of the
factors that I believe go into a just sentence that
these sentences were fair, just and appropriate.
Hearing, 3/14/14 at 13-20.4
“[T]he parameters of this Court’s review of the discretionary aspects of
a sentence is confined by the dictates of 42 Pa.C.S. § 9781(c) and (d).”
4
We observe that the trial court twice mentioned a period of “ten years plus
thirty months.” We are unsure what the court was referring to. We are only
reviewing the sentence of 3 ½ to 7 years’ incarceration followed by 30
months’ probation imposed on both defendants.
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Commonwealth v. Daniel, 30 A.3d 494, 497 (Pa.Super. 2011), quoting
Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007).
Section 9781(c) specifically defines three instances
in which the appellate courts should vacate a
sentence and remand: (1) the sentencing court
applied the guidelines erroneously; (2) the sentence
falls within the guidelines, but is “clearly
unreasonable” based on the circumstances of the
case; and (3) the sentence falls outside of the
guidelines and is “unreasonable.”
Commonwealth v. Coulverson, 34 A.3d 135, 146 (Pa.Super. 2011).
Section 9781(d) provides that when reviewing a sentence, we must
consider:
(1) The nature and circumstances of the offense
and the history and characteristics of the
defendant.
(2) The opportunity of the sentencing court to
observe the defendant, including any
presentence investigation.
(3) The findings upon which the sentence was
based.
(4) The guidelines promulgated by the
commission.
42 Pa.C.S.A. § 9781(d).
[T]he term “unreasonable” generally means a
decision that is either irrational or not guided by
sound judgment. [A] sentence can be defined as
unreasonable either upon review of the four
elements contained in § 9781(d) or if the sentencing
court failed to take into account the factors outlined
in 42 Pa.C.S. § 9721(b).
Daniel, 30 A.3d at 497, quoting Walls supra.
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42 Pa.C.S.A. § 9721(b) offers the following guidance:
[T]he 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. The court
shall also consider any guidelines for sentencing and
resentencing adopted by the Pennsylvania
Commission on Sentencing . . . .
42 Pa.C.S.A. § 9721(b).
[T]he weighing of the factors under 42 Pa.C.S.
§ 9721(b) [is] exclusively for the sentencing court,
and an appellate court could not substitute its own
weighing of those factors. The primary
consideration, therefore, is whether the court
imposed an individualized sentence, and whether the
sentence was nonetheless unreasonable for
sentences falling outside the guidelines, or clearly
unreasonable for sentences falling within the
guidelines, pursuant to 42 Pa.C.S. § 9781(c).
Commonwealth v. Bricker, 41 A.3d 872, 876 (Pa.Super. 2012), quoting
Commonwealth v. Bowen, 975 A.2d 1120, 1123-1124 (Pa.Super. 2009)
(citations omitted).
Instantly, the Commonwealth first contends the defendants’ sentence
is excessively lenient because the trial court failed to impose an additional
penalty on the defendants for the killing of a second child, Brandon.
(Commonwealth’s brief at 22-23.) The record does not support the
Commonwealth’s contention.
The trial court imposed a concurrent sentence for the probation
violation in the case stemming from the death of Kent. The court made it
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clear that it considered the probation violation and the new case as each
affected the other, and therefore imposed a larger aggregate sentence than
it might otherwise have imposed. (Hearing, 3/14/14 at 15-16.) For the
probation violation and the instant case, the defendants were sentenced to a
term of incarceration of 3½ to 7 years, to be followed by a term of probation
of 2½ years. The sentences were to be served concurrently. The
Commonwealth appealed the sentence for the new case, but did not appeal
the sentence for the probation violation.
Next, the Commonwealth argues the sentence depreciates the gravity
of the offense and fails to properly consider the defendants’ failure to be
rehabilitated and the continuing danger they pose to their surviving children.
(Commonwealth’s brief at 23.) Basically, the Commonwealth is challenging
the weight the trial court assigned to the Section 9721(b) considerations.
The trial court recognized the defendants were possibly a danger to their
children, but not a danger to the general public.5 The trial court explained:
[T]hese defendants are not “typical” of defendants
convicted of murder. Aside from the instant matters,
the defendants have no criminal record. Moreover,
the defendants have no history of violence in general
or, more specifically, with regard to their children.
On the contrary, all of the evidence presented at
sentencing shows the Schaibles to be loving and
caring parents, with the significant exception of their
absurd and dangerous views on medical care for
their children.
5
At the sentencing hearing, the prosecutor stated, “The only people [the
defendants] are a danger to are their own children.” (Sentencing hearing,
2/19/14 at 36.)
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Trial court opinion, 8/7/14 at 6.
With the above in mind, the trial court fashioned a sentence it deemed
to be of sufficient length that would protect the defendants’ other children.
The trial court’s order did not permit the defendants to have any say in
medical decisions for their children. While the trial court anticipated the
defendants would have little chance of ever regaining custody,6 it
nevertheless planned for this unlikely contingency by imposing a sentence of
such length that the youngest Schaible child would be 14 years old and
capable of a say in his own medical care by the end of the defendants’
supervision.
Next, we turn to whether the sentence was consistent with the gravity
of the offense. The Commonwealth argues the trial court failed to
appreciate the gravity of the offense. (Commonwealth’s brief at 24.)
According to the Commonwealth, the defendants were given a lenient
sentence of 10 years’ probation for killing Kent under similar circumstances,
yet this lenient sentence did nothing to prevent the same thing from
happening to Brandon. (Id.)
6
Following a hearing on August 4, 2014, Judge Tereshko entered orders
permanently terminating the parental rights of both Herbert and
Catherine Schaible as to all of their children. The court further ordered the
Philadelphia Department of Human Services (“DHS”) to plan for the adoption
of each child. The court entered identical orders for each child.
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At sentencing, the trial court told the defendants, “You’ve killed two of
your children, that’s it in a nutshell.” (Sentencing Hearing, 2/19/14 at 71.)
Additionally, the court stated:
So I share completely the Commonwealth’s outrage
about these killings because that’s what they are,
these killings, and I understand that the
Commonwealth’s sentencing recommendation, which
after all, is at the bottom end of the standard range
of our sentencing guidelines, is not in any way an
unreasonable recommendation for the crimes
committed. But our sentencing code and our
sentencing philosophy in this country is not simply to
let the punishment fit the crime, it’s to have the
punishment fit not only the crime, but the criminal
also.
Id. at 68.
In its Rule 1925(a) opinion, the trial court further explained:
Here the parents have demonstrated consistent love,
devotion and support for their children. There is
absolutely no history of violence or neglect outside of
the Schaibles’ totally unjustifiable decisions to deny
their children medical attention because of the
nonsensical demands of their church. This conduct
alone calls for a harsh sanction, and the Schaibles
have earned their state prison sentences. But their
conduct simply cannot be equated with the conduct
of defendants in the vast majority of child
abuse/child neglect homicide cases, and it is those
cases and those defendants which are contemplated
by the sentencing guidelines.
Trial court opinion, 8/7/14 at 6. Based on the above, the record does not
support the Commonwealth’s argument that the trial court did not
appreciate the gravity of the defendants’ offense. Trial courts are obliged to
consider each defendant individually and pronounce a sentence based upon
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the facts, findings, and circumstances presented. The fact that the trial
court came to a different conclusion than the Commonwealth does not mean
the trial court was either unreasonable or abused its considerable discretion.
Next, the Commonwealth argues the trial court failed to properly
consider the defendants’ failure to be rehabilitated. The Commonwealth is
referring to the fact the defendants had already watched one child die due to
their failure to obtain medical attention for that child. The same conduct
occurred once more, resulting in Brandon’s death. In both cases, the
Schaibles stated they did not seek medical attention because it was against
their religious beliefs, and that it would have been considered a sin to seek
medical assistance rather than to trust in God for the children’s healing.
The trial court addressed this argument as follows:
First, it has been conceded from the outset of
these cases that the Schaibles have never been a
danger to the general public, or to anyone except
their own children. (N.T., 2/19/14, pp. 34, 3[]). As
demonstrated earlier in this Opinion, the court’s
sentences fully protect even the youngest of the
Schaible children (Supra, pp. 1-2, 5-6, ftn.2) from
future adverse consequences stemming from their
parents’ belief about medical treatment.
The Commonwealth also claims that these
sentences are inconsistent with appellees’
rehabilitative needs. This is also not accurate. In
this court’s view, at their sentencing hearing the
Schaibles expressed grief, great remorse and sincere
understanding of their own responsibility for the
deaths of both children (N.T., 2/19/14, pp. 60-64).
Undoubtedly, for Brandon and Kent Schaible this
understanding and acceptance of responsibility
comes far too late. But, I am not inexperienced in
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listening to defendants’ expressions of remorse and
acceptance of responsibility at sentencing, and I
firmly believe that Herbert and Catherine Schaible
finally understand the consequences of what they
have done and why they made these terrible wrong
choices. To the extent such a thing is possible, they
are rehabilitated.
Trial court opinion, 8/7/14 at 10.
Here, the trial court observed the defendants at sentencing and
concluded that their statements of remorse were sincere and worthy of
consideration. We cannot second-guess this determination simply because it
does not please the Commonwealth any more than we will second-guess a
trial court’s determination that displeases a defendant. See
Commonwealth v. A.W.Robl Transport, 747 A.2d 400, 403 (Pa.Super.
2000) (Superior Court will not second-guess the trial court’s credibility
determinations on appeal), appeal denied, 764 A.2d 1063 (Pa. 2000).
Last, the Commonwealth argues the trial court relied on mistaken or
improper factors to depart from the guidelines. The trial court’s opinion is
replete with the reasons given for the sentences imposed. After setting forth
its reasons along with pertinent discussion, the trial court ended by stating:
At its core, the Commonwealth’s issue with this
court’s sentences comes down to the question of
punishment: the Commonwealth believes the
Schaibles have not been punished sufficiently for
their conduct and its horrendous consequences. This
is a sincerely held position which the court deeply
respects. But, it is also a position with which this
court profoundly disagrees.
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The court imposed a significant state prison
sentence on two conscientious parents who believed
- erroneously and tragically - that they were raising
their children with love and caring. In all [but] one
critically important respect, they were. At both
sentencing hearings and in this opinion, the court
has articulated its specific, case related reasons for
its significant downward sentencing departures.
Respectfully, the placing of those reasons on the
record, and the reasons themselves, demonstrate
that this court did not abuse its discretion in
imposing these sentences.
Trial court opinion, 8/7/14 at 10. The record demonstrates the trial court
understood the severity of the defendants’ crimes, but was convinced the
defendants were markedly different from the usual defendant convicted of
third-degree murder in cases involving the death of a child. In those cases,
the parents or caregivers usually exhibit violence towards children or there is
a sustained pattern of abuse and/or neglect. The trial court found this case
atypical in that the defendants exhibited consistent love, devotion, and
support for their children. Additionally, the trial court had the opportunity to
review a pre-sentence investigation report. See Commonwealth v.
Tirado, 870 A.2d 362, 368 (Pa.Super. 2005) (stating if sentencing court has
benefit of PSI, law expects court was aware of relevant information
regarding defendant’s character and weighed those considerations along
with any mitigating factors).
To conclude, the Commonwealth’s appeal seems to be grounded in
mere dissatisfaction with the sentence imposed, as the court did not follow
the Commonwealth’s recommendation of 8 to 16 years for third-degree
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murder; such an argument generally fails when made on behalf of the
defendant, and gains no potency simply because it is advanced by the
Commonwealth instead. We recognize that a significant downward
departure from the sentencing guidelines will no doubt raise a cynical eye.
However, absent statutory mandates, such deviations are permitted
provided the trial court’s decision is not unreasonable or an abuse of
discretion. As previously stated, trial courts are obliged to consider each
defendant individually and pronounce a sentence based upon the facts,
findings, and circumstances presented. It is our determination that the trial
court followed the law on sentencing. The certified record does not support
the Commonwealth’s claims. While another court might have handed down
a different sentence, that is not proof of an abuse of discretion or an
unreasonable result. Accordingly, we find no abuse of discretion or error of
law.
The defendants’ judgments of sentence are affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2015
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