Com. v. Berrios, E.

J-S12007-23
2023 PA Super 110COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
ELISABELL V. BERRIOS :
:
Appellant : No. 1094 MDA 2022
Appeal from the Judgment of Sentence Entered June 17, 2022,
in the Court of Common Pleas of Lancaster County,
Criminal Division at No(s): CP-36-CR-0000298-2022.
BEFORE: KUNSELMAN, J., McCAFFERY, J., and COLINS, J.*
OPINION BY KUNSELMAN, J.: FILED: JUNE 20, 2023
Elisabell V. Berrios appeals from the judgment of sentence imposing two
to twelve months’ incarceration after a jury convicted her of open lewdness.1
Because Berrios exposed her breasts to inmates at a county jail from the street
below their cell windows, her public, sexually explicit misconduct violated the
open-lewdness statute. Additionally, the language of that statute withstands
Berrios’ constitutional challenge for vagueness, and we affirm.
Around 10:10 p.m. on September 16, 2021, Berrios drove her car to
Lancaster County’s jail, where her boyfriend, Fermina Vega, was incarcerated.
The jail is in a residential neighborhood of Lancaster. She parked on the side
of the street opposite the jail. Berrios’ best friend and her two daughters
(ages eight and twelve) accompanied her in the vehicle. The daughters exited
the vehicle and began playing around the car.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S.A. § 5901.
J-S12007-23
At 10:12 p.m., Vega called Berrios from an app on a jail-provided tablet.
The jail’s IT department automatically recorded the call. See N.T., 6/13/22,
at 94-95; see also Commonwealth’s Ex. 5. Vega and Berrios’ began a sexual
conversation, while Berrios climbed on the hood of her car. See id. Berrios
laid with her back against the car’s windshield and continued to converse with
Vega. The call lasted over 14 minutes.
A guard, performing a perimeter check, heard children laughing and
making playing sounds, which struck him as odd for that time of night. He
also heard the voices of the inmates drifting down from their windows. They
were yelling and “getting riled up.” Id. at 83-84.
The guard rounded a corner of the jail and saw Berrios lying on the car,
with a phone in her right hand. With her left hand, she pulled down the top
of her shirt to expose “her entire breast.” Id. 71. At first, this only exposed
one breast, but, as the guard watched, “she moved it over, and [he] saw her
other breast in its entirety, as well.” Id. at 72.
The guard then radioed his supervisor and called county dispatch. He
remained in the vicinity and activated his body camera while waiting for law
enforcement. See Commonwealth’s Ex. 2. Despite knowing the guard was
present and observing her, Berrios exposed her breasts “at least two, if not
more” times. N.T., 6/13/22, at 79.
Soon, four local police officers arrived. One of the officers walked over
to Berrios, who was still lounging on her windshield. The officer informed her
-2-
J-S12007-23
that they had received a call concerning “a female on top of a hood, exposing
herself to the inmates of the prison.” Commonwealth Ex. 7 at 1:07.
Berrios stated, “Exposing myself? . . . I mean, if showing my stomach
is exposing myself, officer, then - - I’m guilty.” Id. at 1:14.
“I wasn’t here; I didn’t see it. This is being reported,” the officer said.
Id. at 1:22.
“Okay. Then it’s basically a he-said-she-said . . . I mean, if showing my
shoulders and showing my stomach is - - is - - then I’m guilty,” Berrios replied.
Id. at 1:25.
Shortly after interacting with Berrios, the police left the scene. Three
weeks later, they charged her with open lewdness and other offenses not at
issue in this appeal.2
Berrios filed a pretrial motion to quash the open-lewdness charge. She
asserted that the “statute proscribing open lewdness, 18 Pa.C.S.A. § 5901, is
so vague as to violate the Due Process Clause of the Fourteenth Amendment
to the United States Constitution.” Motion to Quash at 1. The trial court
denied Berrios’ motion, and the matter proceeded to trial.
The jury only convicted Berrios of open lewdness. The court sentenced
Berrios as described above, and she filed post-sentence motions, which were
denied. This timely appeal followed.
____________________________________________
2See 18 Pa.C.S.A. §§ 4304(a)(1) (endangering the welfare of children) and
5503(a)(4) (disorderly conduct).
-3-
J-S12007-23
Berrios raises three issues, which we have reordered as follows for ease
of disposition:
1. [Whether] the evidence . . . was insufficient to prove
[Berrios’] guilt beyond a reasonable doubt of open
lewdness?
2. [Whether] 18 Pa.C.S.A. § 5901 is void for vagueness?
3. Did the [trial] court . . . abuse its discretion in
fashioning [Berrios’] sentence by relying on improper
factors?
Berrios’ Brief at 17.
1. Sufficient Evidence of Lewdness
First, we consider Berrios’ challenge to the sufficiency of the evidence.
She argues that exposing the female breast is not “lewd” as that word is used
within the open-lewdness statute. Berrios observes that no appellate court in
Pennsylvania has held exposing female breasts in public constitutes open
lewdness. She contends the statute is reserved for public displays of the
genitalia. See id. at 35.
Alternatively, Berrios claims that the evidence did not prove beyond a
reasonable doubt that she actually exposed her breasts below the top of the
nipple. See id. at 39. She believes that the jury could not reasonably find
that she revealed her nipple from the guard’s testimony that she exposed her
“entire breast.” Id. at 40.
When reviewing a claim that the evidence does not sufficiently support
a conviction, “our standard of review is de novo; however, our scope of review
-4-
J-S12007-23
is limited to considering the evidence of record, and all reasonable inferences
arising therefrom, viewed in the light most favorable to the Commonwealth
as the verdict winner.” Commonwealth v. Rushing, 99 A.3d 416, 420–21
(Pa. 2014). “The test for the sufficiency of the evidence in a criminal case is
whether the evidence is sufficient to prove every element of the crime beyond
a reasonable doubt.” Commonwealth v. Williams, 574 A.2d 1161, 1162
(Pa. Super. 1990).
Here, the jury convicted Berrios of open lewdness. A person commits
that crime “if [s]he does any lewd act which [s]he knows is likely to be
observed by others who would be affronted or alarmed.” 18 Pa.C.S.A. § 5901.
Berrios has limited her appellate argument to the phrase “lewd act” and
contends that the exposing of the female breasts in public is not lewd.
There are certainly circumstances where that statement is true. For
example, our General Assembly has explicitly excluded breastfeeding an infant
from criminality under the Health and Safety Code. The legislature provided
that, “The act of breastfeeding shall not be considered (1) Indecent exposure
as defined in 18 Pa.C.S.A. § 3127[;] (2) Open lewdness as defined in 18
Pa.C.S.A. § 5901[;] (3) Obscenity or sexual conduct as defined in 18 Pa.C.S.A.
§ 5903[; or] (4) A nuisance as defined in 18 Pa.C.S.A. § 6504 . . . .” 35 P.S.
§ 636.4.
Clearly, the legislature found it necessary to exclude breastfeeding from
the reach of the open-lewdness statute. The enactment of such an exception
strongly indicates a legislative intent that the exposure of the female breast,
-5-
J-S12007-23
and the nipple with which one breastfeeds, falls within the scope of the
conduct that Section 5901 of the Crimes Code forbids. Otherwise, the General
Assembly would have had no need to enact 35 P.S. § 636.4(2) to exempt
breastfeeding from the open-lewdness statute.
Under the Pennsylvania Rules of Statutory Construction, we may not
interpret 18 Pa.C.S.A. § 5901 so narrowly as to render 35 P.S. § 636.4(2)
meaningless, because “Every statute shall be construed, if possible, to give
effect to all its provisions.” 1 Pa.C.S.A. § 1921(a). Given that the legislature
enacted 35 P.S. § 636.4(2) specifically to exclude the exposure of the nipple
for breastfeeding from criminality under 18 Pa.C.S.A. § 5901, we infer that
the General Assembly intended the exposure of the nipple to constitute open
lewdness, at least in certain circumstances.
While there may be circumstances, other than breastfeeding, where the
public exposure of a female’s entire breast does not amount to open lewdness,
like the trial court, we hold that this case is a circumstance in which the
General Assembly intended to ban the exposure of a female’s nipples from
public view.
At common law, the crime of open lewdness “was defined as an act of
gross and open indecency which tends to corrupt the morals of the
community.” Commonwealth v. Heinbaugh, 354 A.2d 244, 247 (Pa. 1976)
(citing Winters v. New York, 333 U.S. 507, 515 (1948); Commonwealth
v. Sharpless, 2 Serg. & R. 91, 100 (Pa. 1815); IV BLACKSTONE’S COMMENTARIES
ON THE COMMON LAW 64 n. 38 (W. Lewis ed. 1898); 53 C.J.S. Lewdness, p. 4
-6-
J-S12007-23
(1948)). Our General Assembly codified the common-law offense with minor
alterations in the language but with “no difference in meaning.” Id. Thus, 18
Pa.C.S.A. § 5901 “must be read as restating the established, common-law
standard which has long existed in this Commonwealth.” Id.
Subsequent to Heinbaugh, and building upon its jurisprudence, this
Court faced a sufficiency-of-the-evidence claim regarding the open-lewdness
statute in Williams, supra. There, a man was convicted of open lewdness
for walking around an apartment parking lot while wearing only a T-shirt and
tight underwear.
We indicated that all “the reported Pennsylvania cases on open lewdness
involved public masturbation or public displays of genitalia.” Williams, 574
A.2d at 1163. In overturning the conviction, this Court held that 18 Pa.C.S.A.
§ 5901 “extends only to conduct that: 1) involves public nudity or public
sexuality, and 2) represents such a gross departure from accepted community
standards as to rise to the level of criminal liability.” Id. Because Williams’
conduct involved neither public nudity nor public sexuality, the evidence was
insufficient to convict him of open lewdness.
Here, unlike in Williams, the conduct of Berrios was overtly sexual in
nature. She received a call from her boyfriend, an inmate in the county jail
and they had a nearly 15-minute conversation that was sexually explicit. They
discussed his ability to see her exposing her entire breast to him and the other
inmates housed on that side of the jail. Thus, Berrios’ conduct involved a
public display of sexuality, even though it did not involve her genitals. The
-7-
J-S12007-23
clear purpose of Berrios displaying her breasts to the jail was to stimulate
Vega’s lustful interests. And, based on the response of the other inmates, it
was clear to Berrios and the guard that she was riling them up, as well.
Berrios displayed her entire breasts to the inmates for a sexual purpose.
Therefore, her conduct was a “lewd act,” as that term is used in Section 5901
of the Crimes Code.
Also, her claim that the Commonwealth offered insufficient evidence
that she exposed her nipples is unavailing. The guard testified that she
exposed her “entire breast” to the inmates on a public street, in the middle of
residential neighborhood of Lancaster. N.T., 6/13/22, at 71.
From this testimony alone, the jury could reasonably find that Berrios
completely uncovered both of her breasts, which, as matter of basic anatomy,
included her nipples. Berrios’ insistence that the Commonwealth needed to
provide specifics of what parts of her breasts made up her “entire breast” is
absurd.
The first appellate issue affords Berrios no relief.
2. Constitutional Challenge Vagueness
Next, we address Berrios’ constitutional challenge to the statute.
She argues that the language of 18 Pa.C.S.A. § 5901 is so vague that
to sustain her conviction violates the Due Process Clause of the Fourteenth
Amendment to the federal constitution. Berrios contends “women of common
intelligence must necessarily guess at [the statute’s] meaning and differ as to
-8-
J-S12007-23
its application.” Berrios’ Brief at 26 (quoting Connally v. General Const.
Co., 269 U.S. 385, 391 (1926)) (some punctuation omitted).
Furthermore, she relies upon Free the Nipple-Fort Collins v. City of
Fort Collins, Colorado, 916 F.3d 792, 795 (10th Cir. 2019). There, the
United States Court of Appeals for the Tenth Circuit affirmed a district court’s
preliminary injunction, barring enforcement of an ordinance that made it
illegal for females to expose their breasts in public. The court’s decision rested
on the Equal Protection Clause of the Fourteenth Amendment. Because the
Equal Protection Clause applies nationwide, Berrios argues “it strains credulity
that the language of Section 5901 could be deemed sufficiently definite to
have notified [her] that the conduct that Commonwealth proved at trial would
make her guilty of this crime.” Berrios’ Brief at 26-27.
Finally, she contends the common law, upon which the legislature based
Section 5901, provided her with no notice that exposing her breast in public
was illegal. Citing a litany of cases involving men whom the Commonwealth
has tried for open lewdness, Berrios asserts that she could find only one case
where a woman faced such a charge, Commonwealth v. Brewington, 2015
WL 6828138 at *2 (Pa. Super. 2015) (non-precedential decision).3 The
defendant in that case pleaded guilty to open lewdness for running fully naked
through a large picnic. Because she found no case where a woman was
____________________________________________
3 We note that Berrios’ decision to include Commonwealth v. Brewington,
2015 WL 6828138 (Pa. Super. 2015) (non-precedential decision), in her brief
violates the Pennsylvania Rules of Appellate Procedure, because this Court
decided it prior to May 2, 2109. See Pa.R.A.P. 126.
-9-
J-S12007-23
convicted for only exposing her breasts, Berrios believes her conviction under
Section 5901 “falls outside notions of fair play and settled rules of law.”
Berrios’ Brief at 32 (quoting Connally, 269 U.S. 391).
We begin by asking whether Berrios waived her Equal Protection Clause
argument, based on Free the Nipple, supra. “The issue of waiver presents
a question of law, and, as such, our standard of review is de novo, and our
scope of review is plenary.” Trigg v. Children's Hosp. of Pittsburgh of
UPMC, 229 A.3d 260, 269 (Pa. 2020).
“Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal.” Pa.R.A.P. 302(a). Indeed, “issues, even those
of constitutional dimension, are waived if not raised in the trial court. A new
and different theory of relief may not be successfully advanced for the first
time on appeal.” Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875, 884
(Pa. Super. 2019), appeal denied, 211 A.3d 644 (Pa. 2019).
Here, Berrios filed a pretrial motion to quash the count of open lewdness
and only asserted that the language of 18 Pa.C.S.A. § 5901 violated the Due
Process Clause of the Fourth Amendment. See Motion to Quash at 1. She
did not assert in the trial court that that statute, if applied to prohibit the
public of exposure of female breasts but not the public exposure of male
chests, would violate the Equal Protection Clause.
Under the Fourteenth Amendment to the Constitution of the United
States:
- 10 -
J-S12007-23
No State shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or
property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the
laws.
U.S. Const. amnd. XIV, § 1.
Although the two Clauses appear consecutively in the amendment, the
Due Process Clause and the Equal Protection Clause give rise to different
constitutional analyses. While similar in aim and scope, their protections and
jurisprudence are not to be conflated. As the Supreme Court of the United
States has explained, the “‘equal protection of the laws’ is a more explicit
safeguard of prohibited unfairness than ‘due process of law,’ and, therefore,
we do not imply that the two are always interchangeable phrases.” Bolling
v. Sharpe, 347 U.S. 497, 499, (1954), supplemented sub nom. Brown v.
Board of Educ. of Topeka, Kan., 349 U.S. 294, (1955).
Here, the two clauses are not interchangeable, because Berrios’ Equal
Protection claim is an assertion that the Commonwealth’s application of
Section 5901 to her is rooted in a discriminatory classification of women. She
claims that Section 5901 would not be applied to prohibit men from exposing
their chests in public. Thus, Berrios alleges that Pennsylvania’s application of
Section 5901 to her conduct discriminates on the basis of her sex.
However, the constitutional challenge that she raised in the trial court
focused solely upon vagueness. This is a purely Due Process challenge, with
no connection to concepts of gender-based discrimination.
- 11 -
J-S12007-23
Thus, we conclude that Berrios’ Equal Protection challenge is not
interchangeable with her Due Process challenge that she raised below.
Accordingly, we dismiss her Equal Protection challenge as waived under
Pa.R.A.P. 302(a). This Court reserves for a future day the question of whether
convicting a woman for exposing her breasts in public is discrimination on the
basis of sex in violation of the Equal Protection Clause.4
We now turn to the Due Process challenge that Berrios preserved for
our review: namely, that the language of Section 5901 is so vague that it
provided her no notice that exposing her entire breasts in public was illegal.
“As the constitutionality of a statute presents a pure question of law,
our standard of review is de novo, and our scope of review is plenary.”
Commonwealth v. Brooker, 103 A.3d 325, 334 (Pa. Super. 2014).
When considering a constitutional challenge for vagueness “Absent the
assertion of an infringement of First Amendment freedoms, the specificity of
a statute must be measured against the conduct in which the party challenging
the statute has engaged.” Heinbaugh, 354 A.2d at 245 (footnote omitted).
In other words, Berrios asserts an as-applied challenge to the statute, rather
than a facial one.
“A criminal statute must give reasonable notice of the conduct which it
proscribes to a person charged with violating its interdiction.” Id. at 246.
____________________________________________
4 Furthermore, Berrios made no claim of heightened protections under the
Constitution of the Commonwealth of Pennsylvania. See Commonwealth v.
Edmunds, 586 A.2d 887 (Pa. 1991). Hence, we limit our decision to the
federal constitution.
- 12 -
J-S12007-23
“Statutes which are so vague that they fail to provide such notice violate the
Due Process Clause of the Fourteenth Amendment to the United States
Constitution.” Id. “The fact that the legislature might without difficulty have
chosen clear and more precise language equally capable of achieving the end
which it sought does not mean that the statute which it in fact drafted is
unconstitutionally vague.” Id. (some punctuation omitted). “Rather, the
requirements of due process are satisfied if the statute in question contains
reasonable standards to guide the prospective conduct.” Id.In Heinbaugh, the Supreme Court of Pennsylvania rejected a Due
Process challenge to Section 5901 based on vagueness. There, a man faced
a charge of open lewdness, because he “did expose and exhibit his genital
organs in a lewd manner openly in a certain place situate at the Kroger parking
lot . . . [and] was masturbating in plain view.” Id. 245 n.2. The trial court
quashed the indictment due to vagueness, and the Commonwealth appealed.
Reversing, the High Court held that, “when an ascertainable standard is
present in a statute, the violator whose conduct falls clearly within the scope
of such standard has no standing to complain of vagueness.” Id. at 247.
Because the open-lewdness statute simply codified the common-law crime of
the same name, Section 5901 stands “on a footing somewhat different than
statutes which attempt to circumscribe conduct newly proscribed.” Id.The language of a statute based upon the common law “need not be
drawn with the precision that a newly conceived interdiction might require.”
Id. “Thus, statutes which embody common-law definitions have generally
- 13 -
J-S12007-23
survived attacks on the grounds of vagueness.” Id. Section 5901 survived
constitutional attack when applied to Heinbaugh’s actions, because
masturbating in a grocery store parking lot rendered him “a hard core violator
. . . .” Id. at 248 (some punctuation omitted).
Still, the Supreme Court of Pennsylvania conceded that the “broadening
of sexual permissiveness, which is an undeniable aspect of contemporary
American society, may have served to shrink the perimeters of community
morality . . . .” Id. at 248. While public masturbation remains an “indecency
. . . there might be other conduct, clearly punishable at the time of Blackstone,
which could not today be constitutionally punished under the statutory
standard” of 18 Pa.C.S.A. § 5901. Id. Berrios asserts that her conduct falls
in the latter category. She believes that, unlike Heinbaugh, she is not “a hard
core violator . . . .” Id. at 248 (some punctuation omitted).
The flaw in Berrios’ argument is that she presumes that the Heinbaugh
Court established an either/or test. In her view, one is either a hard core
violator to whom the statute may constitutionally apply, or one is not a hard
core violator to whom the statute may not constitutionally apply.
In our view, Heinbaugh did not create such a clear-cut dichotomy. We
read Heinbaugh as merely holding that hard core violators may not bring a
successful, void-for-vagueness challenge to common-law based statutes. It
does not explicitly require the Commonwealth to establish that a defendant is
a “hard core violator” to satisfy the precepts of Due Process. Thus, we need
not find either that Berrios is a hard core violator or acquit her.
- 14 -
J-S12007-23
Instead, the test is one of reasonableness under the circumstances of
each case. Was it reasonably foreseeable to someone in Berrios’ position that
the law forbade her conduct? Should she “reasonably understand that [her]
contemplated conduct [was] proscribed”? United States v. Mazurie, 419
U.S. 544, 553, (1975).
In Mazurie, the district court convicted Martin and Margret Mazurie of
“introducing spirituous beverages into Indian country, in violation of 18 U.S.C.
§ 1154.” Id. at 545. The appellate court reversed on the basis that the
statute was void for vagueness. Writing for a unanimous Supreme Court,
Chief Justice Rehnquist disagreed and reinstated their convictions. He
explained that the Tenth Circuit was too concerned with the lack of specificity
in the statute for the word “Indian,” because the Mazuries knew which people
in the reservation were Indians. Thus, they would have had no difficulty
following the law, if they had desired to do so.
“The record plainly establishes that, in the circumstances of this case,
the distinction between Indians and non-Indians was generally understood.”
Id. at 553, n.10. “Those who testified about the housing and school surveys
displayed no difficulty in making such classification. Nor did Mr. Mazurie.” Id.
“He testified that, when there was trouble at his bar, he would call the county
sheriff to deal with a non-Indian, but [he] would call the tribal police to deal
with an Indian.” Id. “When his counsel questioned him as to how he
determined which was which, he simply replied: ‘Because I knew them.’” Id.
- 15 -
J-S12007-23
The Mazurie’s vagueness challenge was futile, because they knew which
people to whom they could not legally sell liquor.
Like the Mazuries, Berrios knew the law’s command, but she chose to
break it anyway. Her interaction with the responding police officer reveals
that she knew that exposing her breasts on a public street was against the
law. When the officer approached her to inquire into her actions, Berrios lied
to him. Instead of saying she exposed her entire breasts, she told the officer
that she only exposed her shoulders and her stomach.
In fact, she stated, “It’s basically a he-said-she-said . . . I mean, if
showing my shoulders and showing my stomach is - - is - - then I’m guilty,”
Berrios replied. Commonwealth’s Ex. 7 at 1:25. From this statement, the
record reveals that Berrios believed that exposing her shoulders and stomach
was not a crime. From her tone of voice and body language in the video, it is
clear that she meant “then I’m guilty” to be sarcastic. Id.
Hence, if Berrios had truly no notice or knowledge that the law forbade
her from exposing her breasts in public, she would have treated her exposed
breasts as she treated her exposed shoulders and stomach. She would have
admitted to exposing them to the officer along with her shoulders and stomach
and then sarcastically said “then I’m guilty.” Instead, Berrios hid the fact that
she had publicly exposed her breasts from the officer in a clear indication of
her consciousness of guilt.
Berrios’ consciousness of guilt establishes that, even in her own mind,
showing the entire female breast in public and attempting to rouse the sexual
- 16 -
J-S12007-23
interests of county inmates are “actions which, even by contemporary mores,
must be deemed, as at common law, indecencies which tend to corrupt the
morals of the community.” Heinbaugh, 354 A.2d at 248 (some punctuation
omitted). In short, Berrios knew she had committed a “lewd act which [s]he
[knew was] likely to be observed by others who would be affronted or
alarmed.” 18 Pa.C.S.A. § 5901. Accordingly, her void-for-vagueness
challenge fails.
We dismiss her second appellate issue as meritless.
3. Application to Review Discretionary Aspects of Sentence
Finally, we come to Berrios’ challenge to the discretionary aspects of her
sentence. Before reaching the merits of that issue, we must decide whether
to grant her petition for allowance of appeal of the discretionary aspects of
sentence.
According to the legislature, “The defendant . . . may file a petition for
allowance of appeal of the discretionary aspects of a sentence for a felony or
a misdemeanor to the appellate court that has initial jurisdiction for such
appeals.” 42 Pa.C.S.A. § 9781. “Allowance of appeal may be granted at the
discretion of the appellate court where it appears that there is a substantial
question that the sentence imposed is not appropriate under this chapter.”
Id.
Thus, there is no right of appeal regarding the discretionary aspects of
one’s sentence. See, e.g., Commonwealth v. Lebarre, 961 A.2d 176, 178
- 17 -
J-S12007-23
(Pa. Super. 2008). To decide whether to hear such an issue, this Court
conducts a four-part analysis as follows:
(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.
Id.Berrios complied with the first three prongs of the test, but the
Commonwealth contends that she does not present a substantial question.
See Commonwealth’s Brief at 20. As such, we focus our inquiry solely upon
the fourth prong.
According to Berrios, her two-months-to-one-year sentence raises a
substantial question, because the trial court “fixated upon the seriousness of
the offense as it perceived it.” Berrios’ Brief at 21. She makes this claim
despite the fact that that court sentenced her within the standard range, in
light of the gravity of the offense and her prior convictions.
The Commonwealth responds:
[A] Rule 2119 (f) Statement will be deemed sufficient to
raise a substantial question to trigger review of the
discretionary aspects of sentence only when it articulates
the manner in which the sentence violates: either a specific
provision of the sentencing code, or a particular
fundamental norm underlying the sentencing process.
Commonwealth v. Mouzon, [812 A. 2d 617 (Pa. 2002)].
[Berrios] has not met this burden.
[She] has not established that there was a violation of
the sentencing code, or a particular fundamental norm
- 18 -
J-S12007-23
underlining the sentencing process. The sentence imposed
was within the standard range of the sentencing guidelines;
thus, the sentence was appropriate under the sentencing
code. Commonwealth v. Moury, 992 A. 2d 162, 171 (Pa.
Super. 2010). At sentencing, the court considered the
penalties authorized by the legislature, and the sentencing
guidelines. To determine the suggested sentence for each
conviction, sentencing courts must determine the
defendant’s prior record score and the offense gravity score
for each offense. See, Commonwealth v. Hand, 252
A.3d. 1159, 1168 (Pa. Super. 2021). Open lewdness has an
offense gravity score of one. [Berrios] had a prior record
score of two. The standard sentencing range for open
lewdness is restorative sanctions to two months
incarceration. (See, 1925 (b) Opinion of the Trial Court).
[Berrios] received a sentence of two to twelve months’
incarceration. This sentence was within the standard range
of the Sentencing Guidelines.
Commonwealth’s Brief at 20-21.
We agree with the reasoning of the Commonwealth and, therefore,
conclude that Berrios’ sentence does not raise a substantial question. We
decline to assert appellate jurisdiction over Berrios’ third and final issue.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/20/2023
- 19 -