Com. v. Myers, R.

J-A05040-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAYTI MYERS :
:
Appellant : No. 195 EDA 2021
Appeal from the Judgment of Sentence Entered October 29, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0006654-2017
BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED APRIL 20, 2023
Rayti Myers (Appellant) appeals from the judgment of sentence imposed
after a jury convicted him of unlawful contact with a minor, endangering the
welfare of a child (EWOC), corrupting the morals of a minor, and indecent
assault of a person less than 13 years of age.1 We affirm.
The trial court recounted the evidence presented at trial as follows:
On August 2-9, 2018, [Appellant] appeared … for [a jury]
trial. Eleven-year-old victim M.P. testified … that she used to live
with her mother, [Appellant], and her two younger brothers in an
apartment. Her mother worked long hours at the airport so [M.P.]
primarily was cared for by her stepfather, [Appellant]. M.P. stated
that she was watching a movie on her mother’s bed when
[Appellant] entered the room, turned her onto her back, and put
his penis into her vagina. She stated that “white stuff” came out
of his penis and that he cleaned himself off with a towel. M.P.
stated that he washed and dried the towel and then put it on the
baby’s crib. She testified that the next day at school, she told her
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1 18 Pa.C.S.A. §§ 6318, 4304, 6301, and 3126.
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teacher that she had been raped by her stepfather. The school
notified the police, who took her to the hospital to be examined.
(N.T. 8/2/18, p. 56-120).
M.P. further testified that besides the rape, on numerous
other occasions[, Appellant] would lick her buttocks, vagina, and
nipples, touch her breasts and vagina, and put his tongue in her
mouth. He also digitally penetrated her vagina with two of his
fingers. [Appellant] offered her $10 to perform oral sex on him,
but when she refused, he raped her. M.P. testified that
[Appellant] threatened to hurt her mother if M.P. told anyone
about the abuse. Despite [Appellant’s] threats, M.P. stated that
she had told her mother multiple times about [Appellant] touching
her inappropriately, but her mother did nothing. Id.
M.P.’s aunt, Geneiah Moment (“Moment”) testified next.
She stated that she learned about [Appellant] sexually abusing
M.P. on the same day that M.P. told school officials. She testified
that she saw M.P. at her grandmother’s house that same day and
that M.P. told her about the rape and how [Appellant] had offered
her money in exchange for oral sex. Moment testified that
thereafter she took M.P. to a clinic to get tested for sexually
transmitted diseases. (N.T. 8/3/22, 7-17).
Next, Denise Wilson (“Wilson”), Manager of Forensic
Services at the Philadelphia Children’s Alliance, testified that M.P.
was interviewed in her office by forensic interviewer Michelle
Kline. The Commonwealth then played a video recording of that
interview for the jury. Id. at 19-31.
Police Officer Jill Cawley testified that on May 5, 2017, she
received a radio call regarding a child reporting a rape at school
and the police officer already on the scene was requesting a
female officer to make the child feel more comfortable. At the
school, Officer Cawley asked M.P. what happened, and M.P. said
“her stepfather told her that he would give her $20 to suck his
dick and that he bent her over and put it in her front.” Officer
Cawley testified that M.P. told her that her crotch hurt and that
she had told her mom several times about the ongoing abuse. Id.
at 32-45.
Dr. Maria McColgan, a board-certified child abuse
pediatrician and Fellowship Director at the CARES Institute,
testified next as an expert in child physical and sexual abuse[,]
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with expertise in the diagnosis and treatment of child sexual
abuse. She testified that M.P. was examined in the Emergency
Room on May 5, 2017, and was examined again approximately
one month later on June 5, 2017, at the Child Protection Program
(CPP) at St. Christopher’s Hospital.
Dr. McColgan had reviewed the reports from each of these
visits. She testified that the examiner at the Emergency Room
noted a vulva vaginal erythema, meaning a diffused redness to
the outside of the vagina and vulva. She stated that this was a
non-specific irritation that could be the result of anything from
sexual abuse to poor hygiene. At her follow-up exam at CPP,
M.P.’s examination was normal without any sign of injury or
infection. Dr. McColgan testified that studies have shown this is
consistent with a history of sexual abuse, even with penetration.
She further testified that it is normal to not find any male DNA in
a rape kit collected on a prepubescent child since there is usually
a delay in reporting and the child would have wiped away any
external DNA, which is where children’s rape kits are swabbed.
Id. at 49-73.
Detective Carol Farrell, Special Victims Unit, testified next.
She stated that she observed via closed-circuit television the
Forensic Interview Specialist’s interview with M.P. Later,
Detective Farrell executed a search warrant at [Appellant’s]
apartment, where the Crime Scene Unit took photos and collected
evidence. Detective Farrell testified that she collected the clothing
and rape kit from the hospital and obtained a search warrant for
a buccal swab of [Appellant’s] DNA. Id. at 84-97.
Police Officer Terry Tull, a member of the Crime Scene Unit,
accompanied Detective Farrell when she executed the search
warrant at [Appellant’s] apartment. He testified that he took
photographs of the apartment unit and recovered a bedsheet, a
towel and swabbed a clear substance on the floor. Id. at 103-
112.
Next, Police Officer Duane White testified that on May 5,
2017, he responded to a radio call regarding a “rape in progress”
at Heston School, meaning that either a rape had been committed
prior to the child arriving at school or while at school. At the
school, he met with M.P. and a school counselor, and described
M.P.’s demeanor as “dazed.” He testified that when he asked M.P.
what happened, M.P. told him that her stepfather had offered her
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money to suck his penis and that he raped her when she refused.
(N.T. 8/6/18, p. 6-15).
Ernest Drummond testified next as an expert in Forensic
Science. He stated that he tested items recovered from the
apartment, including a top sheet, a fitted sheet, and a towel, and
that he observed semen on the towel, but none on the sheets. Id.
at 22-32.
David Hawkins testified next as an expert in Forensic DNA
Analysis. He stated that he reviewed the results of the rape kit
processed, which included two swabs from M.P.’s vaginal vault.
The first sample did not include any human DNA; the second
sample did not contain any male DNA. He further testified that
the semen observed on the towel matched [Appellant’s] DNA
profile. Id. at 42-66.
Next, Jennifer Klepesky, a caseworker at the Department of
Human Services, testified that M.P. was removed from her
mother’s care after M.P. was discharged from the emergency
room on May 5, 2017. Klepesky stated that M.P.’s mother
admitted that she had known about the abuse for at least six
weeks and M.P. had talked to her about it on numerous occasions,
but that she relied on [Appellant] for childcare so she did nothing.
Id. at 72-87.
At the conclusion of Ms. Klepesky’s testimony, the
Commonwealth entered its exhibits into evidence and rested.
Defense counsel then moved for a judgment of acquittal without
any argument, which th[e trial c]ourt denied. Id. at 93-94.
[Appellant] chose not to testify and defense counsel did not
produce any witnesses. The jury returned with its verdict on
August 9, 2018, and found [Appellant] guilty on the following
counts: Unlawful Contact with a Minor, Endangering the Welfare
of a Child, Corrupting the Morals of a Minor, and Indecent Assault
of a Person less than 13 years of age. The jury found [Appellant]
not guilty of Rape of a Child, Involuntary Deviate Sexual
Intercourse, and Aggravated Indecent Assault of a Child.
Trial Court Opinion, 6/1/22, at 3-6.
On October 29, 2018, the trial court sentenced Appellant to an
aggregate 8 – 20 years of incarceration. On November 8, 2018, Appellant
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filed a post-sentence motion challenging the sufficiency of the evidence, and
the trial court’s imposition of consecutive rather than concurrent sentences.
The motion was denied by operation of law on May 8, 2019. Appellant did not
appeal. However, Appellant subsequently filed an unopposed and ultimately
successful petition under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-
9546, seeking reinstatement of his direct appeal rights. On December 31,
2020, Appellant filed a notice of appeal, followed by a court-ordered concise
statement of errors pursuant to Pa.R.A.P. 1925(b).
Appellant presents five issues for review:
1. Whether the evidence presented at trial was sufficient to
establish each and every element of the crimes of unlawful
contact with a minor, indecent assault of a child,
endangering the welfare of a child, and corruption of a
minor.
2. Whether the jury verdict was against the weight of the
evidence.
3. Whether [A]ppellant’s Due Process rights were violated
based on the introduction of hearsay evidence at trial.
4. Whether the sentencing court abused its discretion by
imposing a sentence that was not based upon the gravity of
the violation, the extent of [A]ppellant’s record, his prospect
of rehabilitation, nor an assessment of the mitigating and
aggravating factors as noted in 42 Pa.C.S. Section 9721 of
the Sentencing Code.
5. Whether the sentencing court imposed a manifestly
excessive sentence to such a degree that the imposition of
consecutive sentences establishes evidence of the court’s
bias or animus toward [A]ppellant.
Appellant’s Brief at 8.
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In his first two issues, Appellant challenges the sufficiency and weight
of the evidence, but bases both arguments on his claim that the Victim was
not credible. See Appellant’s Brief at 16-18. For example, Appellant argues
with respect to sufficiency:
The testimony of the [Victim] failed to establish beyond a
reasonable doubt every element of the unlawful contact with a
minor charge, as well as the charges of corruption of a minor,
EWOC, and indecent assault of a child.
Her testimony was vague and inconsistent, with no detailed
recollections of specific acts by [A]ppellant, or of any dependable
timeframe as to dates or times of the alleged incidents. The
multiple contradictions and inconsistencies, combined with her
subsequent redaction and apology, definitively proves that the
testimony provided at trial was fabricated and destroyed her
credibility. The [Victim] was simply not credible, and no
supporting physical evidence was offered to corroborate her
testimony.
Appellant’s Brief at 17.
Regarding the weight of the evidence, Appellant argues:
The [jury’s] guilty verdict completely ignores the lack of
compelling evidence, particularly the lack of any credible
testimonial evidence against [A]ppellant. The prosecution’s
failure to present any physical evidence to corroborate the
fabricated testimony magnifies the lack of credible, substantive
evidence. The evidence presented by the [Victim] was extremely
vague and terribly inconsistent because the evidence was
fabricated and the witnesses [sic] never experienced the alleged
assaults. The lack of any physical evidence or medical
documentation of sexual assault or unlawful contact deserves
greater weight than the uncorroborated and inconsistent
testimony of the complainants [sic].
Id. at 18.
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The Pennsylvania Supreme Court has held that an appellant’s challenge
to the sufficiency of the evidence “must fail” when the appellant claims a
sufficiency challenge but his argument goes to the weight of the evidence.
Commonwealth v. Small, 559 Pa. 423, 434, 741 A.2d 666, 672 (Pa. 1999);
see also Commonwealth v. Wilson, 825 A.2d 710, 713-14 (Pa. Super.
2003) (explaining sufficiency of evidence review does not include assessment
of credibility, which is more properly characterized as challenge to weight of
evidence); Commonwealth v. Strutt, 624 A.2d 162, 164 (Pa. Super. 1993)
(stating “testimony of a sexual assault victim standing alone is sufficient
weight to support a conviction.”); Commonwealth v. Widmer, 744 A.2d
745, 751-52 (Pa. 2000) (explaining that a sufficiency challenge involves the
evidence proving each material element of a crime; a weight challenge
concedes the evidence is sufficient, but implicates the factfinder’s credibility
determinations). Accordingly, Appellant’s first issue lacks merit. 2
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2 Appellant’s claim that the evidence was insufficient because the Victim’s
testimony “did not establish the elements of the crimes,” is contrary to
established case law. See Appellant’s Brief at 16; see also Commonwealth
v. W.H.M., 932 A.2d 155, 160 (Pa. Super. 2007) (explaining claim that jury
should have believed appellant’s version of events rather than that
of victim goes to weight, not sufficiency of evidence); Commonwealth v.
Wilson, 825 A.2d 710, 713-14 (Pa. Super. 2003) (explaining sufficiency of
evidence review does not include assessment of credibility, which is more
properly characterized as challenge to weight of evidence); Commonwealth
v. Gaskins, 692 A.2d 224, 227 (Pa. Super. 1997) (stating credibility
determinations are made by the finder of fact and challenges to those
determinations go to the weight, not the sufficiency of evidence).
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In his second issue challenging the weight of the evidence, Appellant
asserts the Victim’s testimony was unbelievable because it was inconsistent,
uncorroborated, and fabricated. See Appellant’s Brief at 17-18. The
Commonwealth argues Appellant waived his weight claim because he failed to
preserve it with the trial court. Commonwealth Brief at 17-18.
Pennsylvania Rule of Criminal Procedure 607 provides:
(A) A claim that the verdict was against the weight of the
evidence shall be raised with the trial judge in a motion for
a new trial:
(1) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.
Pa.R.Crim.P. 607(A)(1)-(3).
Our review confirms Appellant did not preserve this issue. Id.3 We
nonetheless recognize that “one of the least assailable reasons for granting or
denying a new trial is the [trial] court’s conviction that the verdict was or was
not against the weight of the evidence.” Commonwealth v. Rabold, 920
A.2d 857, 860 (Pa. Super. 2007) (citation omitted). In the absence of waiver,
we would agree with the trial court’s observation:
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3 Although Appellant’s counsel made a motion for judgment of acquittal, he
did so “without any argument.” Trial Court Opinion, 6/1/22, at 3-6 (citing
N.T., 8/6/18, at 93-94). Appellant’s counsel stated: “I don’t have argument.
I’m just making [the motion] for the record.” N.T., 8/6/8, at 93. The trial
court denied the motion. Id. at 94.
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[The Victim] testified regarding numerous instances where
[Appellant] touched, licked, and fondled her breasts, nipples,
vagina, and buttocks. [The Victim] testified that [Appellant]
kissed her and put his tongue in her mouth and that he digitally
penetrated her vagina with two fingers. She further testified that
he asked her to perform oral sex on him in exchange for money
and that when she refused, he raped her. While the jury did not
find [Appellant] guilty of rape, it did find him guilty of endangering
the welfare of a child, unlawful contact with a minor, corruption of
the morals of a minor, and indecent assault of a child. Based upon
[the Victim’s] detailed and graphic testimony, this verdict cannot
be said to “shock one’s sense of justice.” The jury found [the
Victim’s] testimony regarding ongoing sexual abuse perpetrated
by [Appellant] to be credible and her testimony alone is enough
to sustain a conviction.
Trial Court Opinion, 6/1/22, at 17. See also Commonwealth Brief at 18
(concluding “even a cursory review of the record reveals [Appellant’s weight]
claim would be specious on its face.”); Commonwealth v. Clay, 64 A.3d
1049, 1055 (Pa. 2013) (stating that “one of the least assailable reasons for
granting or denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of evidence”). Appellant’s second issue
lacks merit.
In his third issue, Appellant argues the trial court violated his right to
due process by erroneously admitting at trial inadmissible hearsay from the
DHS caseworker, Ms. Klepesky. Appellant challenges the following testimony:
[MS. KLEPESKY]: [The Victim] was removed from her mother’s
care after I had a conversation with her mother and in regard to
her mother’s knowledge about what the allegations were and what
was allegedly taking place in the home.
[COMMONWEALTH]: So based on your conversation with the
mother, what was your assessment?
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[MS. KLEPESKY]: Initially, the mother had reported to me that she
had no knowledge of anything that was going on in the home, and
then when I confronted her with –
[APPELLANT’S COUNSEL]: Objection, Judge. This is all hearsay.
[COMMONWEALTH]: It goes to the –
THE COURT: [excuses jury to address the issue with counsel]
N.T., 8/6/18, at 81.
Appellant’s counsel argued:
I am not sure if it’s relevant that the child was removed from
the home [after her mother acknowledged the Victim had told her
about the abuse]. It’s not relevant to prove the allegations.
[And] with all due respect to the witness, [Ms. Klepesky,]
it’s her professional judgment that she made based on information
that she got. So, if the Commonwealth wants to elicit the basis
for that information for the judgment, and the [c]ourt instructs
the jury that this is not offered for the truth – to prove truth
– it’s only offered for the effect of the judgment of the
witness. That’s a good cautionary instruction. But I didn’t
want it to be admitted that this must have happened as the truth,
because that would be hearsay.
Id. at 83-84 (emphasis added).
The Commonwealth agreed with the trial court issuing a cautionary
instruction. Id. at 85. Thus, the trial court instructed the jury:
All right, ladies and gentlemen.
You’ve heard the witness give some testimony concerning
[the Victim] being removed from her mother’s care before the
objection. So, I just want to caution you that she is going to give
testimony concerning why she removed the child, but that
testimony is not being offered to show that it was true, but simply
being offered to show why this witness took the steps that she
took. So I am cautioning you that the words that the mother
stated to her are not being offered for the truth of the matter, but
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simply to show why this particular witness took the steps that she
took following her discussion with the mother.
Id. at 86.
On appeal, Appellant argues:
Ms. Klepe[]sky testified that she interviewed [the Victim’s] mother
as part of her investigation, and then told the jury that [the
Victim’s] mother acknowledged that she was aware of the
allegation of abuse made by her daughter[, the Victim,] but
refused to take action because she relied on [A]ppellant to provide
childcare. The [Victim’s] mother did not testify at trial. The
testimony of [Ms. Klepesky] was inadmissible hearsay, as it did
not qualify for any of the exceptions permitted under the
Pennsylvania rules of evidence. More importantly, the testimony
regarding [the Victim’s] mother’s acknowledgement and
acquiescence is false and was presented solely to prejudice the
jury against [A]ppellant.
Appellant’s Brief at 18-19.
The Commonwealth argues Ms. Klepesky’s testimony was not hearsay
because it was not offered for the truth of the matter asserted.
Commonwealth Brief at 18 (stating Appellant “vaguely refers to due process”
and disregards the trial court’s instruction to the jury to not consider the
testimony for its truth but for the effect it had on Ms. Klepesky’s actions.).
The Commonwealth also maintains Appellant was not prejudiced because Ms.
Klepesky’s testimony “did not directly implicate [Appellant,] but instead
demonstrated that [the Victim’s] mother was aware of [the Victim’s]
allegations,” but did not act on them. Id. at 21. The Commonwealth is
correct.
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Hearsay is a statement “the declarant does not make while testifying at
the current trial or hearing,” which “a party offers in evidence to prove the
truth of the matter asserted in the statement.” Pa.R.E. 801(c)(1) and (2).
Hearsay is “generally is inadmissible unless it falls within one of the exceptions
to the hearsay rule delineated in the Pennsylvania Rules of Evidence.”
Commonwealth v. Sandusky, 203 A.3d 1033, 1054 (Pa. Super. 2019)
(citations omitted). If an out-of-court statement is not offered for the truth
of the matter asserted, the statement is not hearsay and can be admitted for
a non-truth purpose. Commonwealth v. Fitzpatrick, 255 A.3d 452, 479
(Pa. 2021). Pertinently, an “out of court statement offered not for its truth
but to explain the witness’s course of conduct is not hearsay.”
Commonwealth v. Rega, 933 A.2d 997, 1017 (Pa. 2007) (emphasis added).
The record confirms Ms. Klepesky’s testimony was not offered to prove
the truth of the matter asserted, i.e., that Appellant committed crimes
involving the Victim. Appellant’s counsel acknowledged that Ms. Klepesky’s
testimony related to her course of conduct. See N.T., 8/6/18, at 84
(Appellant’s counsel stating the testimony was not hearsay if it was “only
offered for the effect of the judgment of the witness.”).
Moreover, the parties agreed to the trial court issuing a curative
instruction. As quoted above, the trial court instructed the jury, in part: “I
am cautioning you that the words that the mother stated to [Ms. Klepesky]
are not being offered for the truth of the matter, but simply to show why this
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particular witness took the steps that she took following her discussion with
the mother.” Id. at 86. Juries are presumed to follow the trial court’s
instructions, and a “trial court’s curative instruction is presumed to be
sufficient to cure any prejudice to [an a]ppellant.” See Commonwealth v.
Thornton, 791 A.2d 1190, 1193 (Pa. Super. 2002) (citations omitted).
Appellant’s third issue lacks merit.
In his fourth issue and fifth issues, Appellant challenges the
discretionary aspects of his aggregate sentence of 8 – 20 years of
incarceration. Appellant’s Brief at 21-22 (claiming sentence “was
unreasonable” where the trial court improperly “focus[ed] on” Appellant’s
“lack of remorse” and discounted mitigating factors; claiming sentence was
manifestly excessive where trial court imposed consecutive sentences and
“focused only on the allegations against [A]ppellant, including the most
egregious allegations, despite the jury’s complete exoneration of [A]ppellant
on those charges.”).
The Commonwealth argues Appellant waived both sentencing issues.
The Commonwealth states:
[Appellant] claims that he preserved the sentencing issues in a
post sentence motion, but that motion raised only a challenge to
the imposition of consecutive sentences; it did not include a
challenge to the court’s weighing of the [statutory] factors.
Further, while [Appellant] preserved the challenge to the
consecutive sentences in the post-sentence motion, he did not set
it forth in his Pa.R.App.P. 2119(f) statement of why he believes
he is raising a substantial question for the grant of discretionary
review of his sentencing claim.
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Commonwealth Brief at 22-23. In the alternative, the Commonwealth argues
Appellant would not “be entitled to appellate relief in any event.” Id. at 23.
See also id. at 23-27 (Commonwealth addressing the merits of Appellant’s
sentencing issues and concluding Appellant’s “complaint amounts to little
more than that the [trial] court did not weigh the factors as he desired.”).
Upon review, we agree Appellant has waived his sentencing issues. An
appellant may not challenge the discretionary aspects of his sentence “as of
right.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super.
2014). Rather, an appellant must satisfy a four-part test to invoke this Court’s
jurisdiction. Id. An appellant has sufficiently complied with the four-part test
when:
the appellant preserved the issue either by raising it at the time
of sentencing or in a post[-]sentence motion; (2) the appellant
filed a timely notice of appeal; (3) the appellant set forth a concise
statement of reasons relied upon for the allowance of appeal
pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a
substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted). To present a substantial question, an appellant must set “forth a
plausible argument that the sentence violates a provision of the sentencing
code or is contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations
omitted).
The Commonwealth has accurately explained Appellant’s waiver of his
sentencing issues. Commonwealth Brief at 22-26. Upon review, we further
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recognize the trial court’s thorough and well-reasoned rejection of the
substance of Appellant’s sentencing issues. The trial court recited applicable
legal authority in advance of explaining:
This [c]ourt sentenced Appellant to 2 to 5 years state
incarceration on each charge to run consecutively, for a total
sentence of 8 to 20 years state incarceration, with credit for time
served. This sentence was within the standard range of the
sentencing guidelines and was reasonable in light of the specific
facts of this case, the significant impact of this crime on the young
victim, [Appellant’s] personal background and criminal history,
and the protection of the public. The record shows [Appellant]
repeatedly sexually abused his stepdaughter, M.P., starting when
she was 7 or 8 years old. Family members testified at sentencing
that M.P. suffered devastating mental and emotional trauma
because of this abuse, and that despite therapy, M.P. had
attempted suicide more than once and lived in a state of fear and
isolation. The presentence investigation report showed that this
was not [Appellant’s] first instance of sexually abusing someone.
Indeed, he was adjudicated delinquent when he was just 12 years
old and placed on neuro-psychiatric probation supervision on a
charge of involuntary deviate sexual intercourse. [Appellant’s]
lengthy criminal history dated back to the 1980s, mostly involving
the sale of drugs. Despite multiple state and county
incarcerations, as well as terms of probation and parole,
[Appellant] failed to take any steps towards rehabilitation to turn
his life around. At sentencing in this matter, [Appellant] did not
display any remorse whatsoever and continued to deny the
charges. He even blamed the child victim herself, claiming that
she was the one who was touching others in an inappropriate
sexual manner. (N.T. 10/20/18, p. 28).
In light of the facts of this case, the tremendous negative
impact on the victim’s life, [Appellant’s] background, and
[Appellant’s] total lack of remorse, this [c]ourt properly imposed
a standard range guideline sentence of 8 to 22 years state
incarceration. Since this sentence was based upon the facts and
circumstances of this case, and as such does not demonstrate any
animus or bias towards [Appellant], no relief is due.
[Appellant] further argues that this [c]ourt abused its
discretion by imposing a sentence that was not based upon the
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factors set forth in [the Sentencing Code at] 42 Pa.C.S. § 9271.
This claim is without merit. Pursuant to 42 Pa.C.S.A. § 9721(b),
the sentencing court must consider (1) the protection of the
public, (2) the gravity of the offense in relation to the impact of
the victim and the community, (3) the rehabilitative needs of the
defendant, and (4) the sentencing guidelines adopted by the
Pennsylvania Commission on Sentencing. Balancing these factors
is solely within the province of the sentencing court.
Commonwealth v. Velez, — A.3d —, * 2, 2022 WL 964170 (Pa.
Super. 2022) (citing Commonwealth v. Lekka, 210 A.3d 343,
350 (Pa. Super. 2019)).
[T]his [c]ourt properly considered the factors set forth in 42
Pa.C.S.A. [§] 9721(b). At sentencing, this [c]ourt reviewed the
PSI [(pre-sentence investigation report)], mental health
evaluation, and the sentencing guidelines. This [c]ourt also read
letters from [Appellant] and an anonymous supporter who asked
this [c]ourt for mercy, heard argument from both counsel, listened
to testimony from the [V]ictim’s aunt and father, and heard from
[Appellant] himself. Having presided over the trial, this [c]ourt
already was keenly aware of the facts and circumstances of this
case. After considering all of this information, this [c]ourt found
it appropriate to sentence [Appellant] to an aggregate term of 8
to 20 years state incarceration, a sentence in the standard range
of the guidelines. In light of [Appellant’s] criminal history and the
potential harm he posed to children; this sentence was necessary
in order to protect the public. This sentence also was necessary
due to the significant mental and emotional harm [Appellant’s]
heinous actions had on the young victim. The record shows that
he sexually abused a little girl over the course of two to three
years, putting his fingers in her vagina, licking her breasts,
buttocks, and vagina, sticking his tongue in her mouth, and asking
her to perform oral sex on him. [The Victim’s] aunt and father
both described how she continued to suffer mentally and
emotionally from this ongoing abuse, and in spite of therapy, had
tried to hang herself more than once. Furthermore, this sentence
was appropriate based upon [Appellant’s] lengthy criminal history
and failure to turn his life around after multiple opportunities to
do so while incarcerated and on probation/parole. After weighing
the facts and circumstances of this case and considering the
factors set forth in 42 Pa.C.S.A. § 9721(b), this [c]ourt properly
sentenced [Appellant] to an aggregate term of 8 to 20 years state
incarceration.
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J-A05040-23
Trial Court Opinion, 6/1/22, at 19-22 (emphasis in original).
We would agree that, contrary to Appellant’s claim, his standard-
guideline-range sentence was neither excessive nor unreasonable. See
Commonwealth v. Walls, 926 A.2d 957, 964 (Pa. 2007) (stating “rejection
of a sentencing court’s imposition of sentence on unreasonableness grounds
[should] occur infrequently, whether the sentence is above or below the
guideline ranges.”); Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.
Super. 2010) (stating “where a sentence is within the standard range of the
guidelines, Pennsylvania law views the sentence as appropriate under the
Sentencing Code.”). Also, trial court had the benefit of a PSI. We thus
presume the trial court was aware of and considered all relevant factors, and
“[h]aving been fully informed by the [PSI], the sentencing court’s discretion
should not be disturbed.” Commonwealth v. Devers, 546 A.2d 12, 18 (Pa.
1988). Appellant’s fourth and fifth issues do not merit relief.
For the above reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2023
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