J-S64005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MARQUISE P. WALIYYUDDIN

                            Appellant                 No. 3650 EDA 2015


          Appeal from the Judgment of Sentence Entered July 31, 2015
             In the Court of Common Pleas of Philadelphia County
               Criminal Division at No: CP-51-CR-0008582-2011


BEFORE: STABILE, J., SOLANO, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.:                       FILED NOVEMBER 07, 2016

        This case returns to us following our remand to the Court of Common

Pleas of Philadelphia County (“trial court”) to resentence Appellant for his

involuntary manslaughter conviction. Upon review, we affirm.

        The facts underlying this case are undisputed. As recounted by a prior

panel of this Court:

        On the evening of Saturday, May 14, 2011, [Appellant] was at
        the apartment of his friend, Katrina Rodriguez [(“Rodriguez”)],
        who was the mother of [Aiden Santiago (“Santiago”) 1 ], a
        healthy three-month-old baby boy.         [Appellant] was the
        godfather of [Santiago], and had babysat for him on several
        occasions without incident.     Also present was [Appellant]’s
        boyfriend, Luis Torres [(“Torres”)].   At around 11:00 p.m.,
        [Appellant] told Rodriguez that he wanted to keep [Santiago] for
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  Although Santiago was a minor at the time of the incident, it is not
necessary for us to protect his identity by using his initials as he is deceased.
J-S64005-16


       an overnight stay. Rodriguez agreed that [Appellant] could take
       [Santiago] to the apartment that [Appellant] shared with Torres
       until the next day. [Appellant] and Torres left with [Santiago],
       who was alert and without any observable problems at the time.

       Sometime during the afternoon of the next day, Torres left
       [Appellant] and [Santiago] to visit Torres’ mother for dinner.
       During dinner, Torres received a frantic call from [Appellant],
       who told Torres that [Santiago] was not breathing. Torres, his
       brother, and his aunt left the house and rushed to [Appellant]’s
       apartment. When they arrived and saw [Santiago], Torres’[]
       aunt called 911.

       Paramedics arrived at the apartment at approximately 7:30 p.m.
       [Santiago] was taken to St. Christopher’s Hospital, where,
       despite emergency cranial surgery, he died at 11:55 p.m. The
       autopsy of [Santiago] revealed subarachnoid and subdural
       hematomas, and optic-nerve hemorrhages, all consistent with
       vigorous shaking of the baby’s head. The medical examiner
       requested a consult from a pediatric neuropathologist, who
       concluded that [Santiago] died from abusive head trauma.

       [Appellant] gave a statement to police on May 16, 2011. In that
       statement, he admitted to getting frustrated when [Santiago]
       awoke during the night crying, and that he “was rocking him
       harder, and was shaking him, just trying to get him to stop
       crying.” He further admitted putting [Santiago] into his car seat
       and “rocking the car seat back and forth pretty hard” causing
       [Santiago] to bounce back and forth in the seat. [Appellant]
       stated that he “could hear [Santiago’s] head bouncing back on
       the back of the car seat.”       According to [Appellant], this
       eventually caused [Santiago] to stop crying.

Commonwealth v. Waliyyuddin, No. 2883 EDA 2013, unpublished

memorandum at 1-2 (Pa. Super. filed November 25, 2014) (citing Trial

Court Opinion, 1/6/14, at 2-3)).

       The procedural history of this case is as follows.2 On May 17, 2011,

Appellant was charged with third degree murder3 (18 Pa.C.S.A. § 2502(c))
____________________________________________


2
 Unless otherwise specified, these facts come from this Court’s November
25, 2014 decision.
3
  The docket in this matter reflects that Appellant was not charged with
involuntary manslaughter at the outset.



                                           -2-
J-S64005-16



and    endangering      the    welfare    of   a   child   (“EWOC”)   (18   Pa.C.S.A.

§ 4304(a)(1)).       On August 2, 2011, a criminal information charging

Appellant with third-degree murder, EWOC and involuntary manslaughter

(18 Pa.C.S.A. § 2504(a)) was filed. After a three-day bench trial, Appellant

was found guilty of involuntary manslaughter and EWOC. On May 24, 2013,

the trial court sentenced Appellant to 4 to 8 years’ imprisonment for

involuntary manslaughter and 1 to 2 years’ imprisonment for EWOC.

Appellant’s aggregate sentence therefore was 5 to 10 years’ imprisonment.

Appellant filed a post-sentence motion, which the trial court denied.

Appellant timely appealed to this Court, raising two issues for our review.

First, Appellant argued that the trial court imposed an illegal sentence

because involuntary manslaughter and EWOC convictions merged for

sentencing purposes.          Second, Appellant challenged the discretionary

aspects of his sentence.         On appeal, a panel of this Court agreed with

Appellant’s merger argument, concluding that involuntary manslaughter and

EWOC should have merged at sentencing.                Waliyyuddin, No. 2883 EDA

2013, at 9-10. As a result, we vacated Appellant’s sentence and remanded

the case to the trial court for resentencing.4

       Upon remand, on July 31, 2015, the trial court resentenced Appellant

to 5 to 10 years’ imprisonment for involuntary manslaughter. On August 3,

____________________________________________


4
  Because we vacated the judgment of sentence, we declined to address
Appellant’s challenge to the discretionary aspects of his sentence.



                                           -3-
J-S64005-16



2015, Appellant filed a post-sentence motion, which the trial court denied on

November 17, 2015.          Appellant once again filed a timely appeal to this

Court. Following Appellant’s filing of a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal, the trial court issued a Pa.R.A.P. 1925(a) opinion.

       On appeal,5 Appellant raises three issues for our review:

       1. Did not the trial court err in sentencing Appellant beyond the
          aggravated range of the Sentencing Guidelines based on an
          improper factor, that is, the age of the victim, which the
          Guidelines already contemplate and provide for in the grading
          of the crime and in the offense gravity score, thus failing to
          provide adequate reasons for deviating from the Sentencing
          Guidelines?

       2. Did not the trial court err in improperly relying on Appellant’s
          arrest record as evidence of prior criminality?

       3. Did not the trial court err in imposing a sentence both
          manifestly excessive and unreasonable under all of the
          circumstances of this case?

Appellant’s Brief at 4.6


____________________________________________


5
  When reviewing a challenge to the trial court’s discretion, our standard of
review is as follows:
       Sentencing is a matter vested in the sound discretion of the
       sentencing judge, and a sentence will not be disturbed on appeal
       absent a manifest abuse of discretion. An abuse of discretion is
       more than just an error in judgment and, on appeal, the trial
       court will not be found to have abused its discretion unless the
       record discloses that the judgment exercised was manifestly
       unreasonable, or the result of partiality, prejudice, bias, or ill-
       will.

Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa. Super. 2012)
(quoting Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super.
2002)), appeal denied, 64 A.3d 630 (Pa. 2013).
6
  Appellant’s first and third issues are related to the extent they implicate
the excessiveness of his sentence.



                                           -4-
J-S64005-16



     Because Appellant’s issues implicate only the discretionary aspects of

his sentence, we note it is well-settled that “[t]he right to appeal a

discretionary aspect of sentence is not absolute.”      Commonwealth v.

Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011).             Rather, where an

appellant challenges the discretionary aspects of a sentence, an appellant’s

appeal should be considered as a petition for allowance of appeal.

Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa. Super. 2007). As we

stated in Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010):

     An appellant challenging the discretionary aspects of his
     sentence must invoke this Court’s jurisdiction by satisfying a
     four-part test:
        [W]e conduct a four-part analysis to determine: (1)
        whether appellant has filed a timely notice of appeal, see
        Pa.R.A.P. 902 and 903; (2) whether the issue was properly
        preserved at sentencing or in a motion to reconsider and
        modify sentence, see Pa.R.Crim.P. [720]; (3) whether
        appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
        (4) whether there is a substantial question that the
        sentence appealed from is not appropriate under the
        Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528 (Pa. Super.

2006)). Whether a particular issue constitutes a substantial question about

the appropriateness of sentence is a question to be evaluated on a case-by-

case basis.   See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa.

Super. 2001), appeal denied, 796 A.2d 979 (Pa. 2002).

     Here, Appellant has satisfied the first three requirements of the four-

part Moury test. Appellant filed a timely appeal to this Court, preserved the

issue on appeal through his post-sentence motions, and included a Pa.R.A.P.

                                    -5-
J-S64005-16



2119(f) statement in his brief.7           We, therefore, must determine only if

Appellant’s sentencing issues raise a substantial question.

       The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.             Commonwealth v. Paul, 925 A.2d

825, 828 (Pa. Super. 2007).           We have found that a substantial question

exists “when the appellant advances a colorable argument that the

sentencing judge’s actions were either: (1) inconsistent with a specific

provision of the Sentencing Code; or (2) contrary to the fundamental norms

which underlie the sentencing process.” Commonwealth v. Phillips, 946

A.2d 103, 112 (Pa. Super. 2008) (citation omitted), appeal denied, 964

A.2d 895 (Pa. 2009). “[W]e cannot look beyond the statement of questions

presented and the prefatory [Rule] 2119(f) statement to determine whether

a substantial question exists.” Commonwealth v. Christine, 78 A.3d 1, 10

(Pa. Super. 2013), affirmed, 125 A.3d 394 (Pa. 2015).

       This Court does not accept bald assertions of sentencing errors. See

Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006).

When we examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists, “[o]ur inquiry must focus on the

reasons for which the appeal is sought, in contrast to the facts underlying
____________________________________________


7
  Rule 2119(f) provides that “[a]n appellant who challenges the discretionary
aspects of a sentence in a criminal matter shall set forth in his brief a
concise statement of the reasons relied upon for allowance of appeal with
respect to the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).



                                           -6-
J-S64005-16



the appeal, which are necessary only to decide the appeal on the merits.”

Commonwealth v. Ahmad, 961 A.2d 884, 886-87 (Pa. Super. 2008)

(quoting Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)).

A Rule 2119(f) statement is inadequate when it “contains incantations of

statutory   provisions   and   pronouncements     of   conclusions   of   law[.]”

Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. Super. 2005) (citation

omitted). We consistently have held that bald assertions of excessiveness

are insufficient to present a substantial question. See Commonwealth v.

Fisher, 47 A.3d 155, 159 (Pa. Super. 2012) (“[The a]ppellant simply

asserts: ‘A substantial question is presented about the sentence where the

Court imposed a manifestly unreasonable sentence in excess of the

guidelines without sufficient justification.”   . . . This amounts to a bald

assertion that [the a]ppellant’s sentence was excessive, devoid of supporting

legal authority.”); see also Moury, 992 A.2d at 170 (“As to what

constitutes a substantial question, this Court does not accept bald assertions

of sentencing errors.      An appellant must articulate the reasons the

sentencing court’s actions violated the sentencing code.”).

      Here, Appellant asserts in his Rule 2119(f) statement:

      The [trial] court . . . assigned special, and overwhelming
      significance to the age of the child victim in articulating the
      reason for its departure from the aggravated range of the
      Sentencing Guidelines in fashioning the sentence imposed at the
      resentencing, even though the Guidelines already contemplate
      the under twelve population as particularly vulnerable: 18
      Pa.C.S.A. § 2504(b) raises the grading of involuntary
      manslaughter from a first degree misdemeanor to a second
      degree felony “where the victim is under twelve years of age and
      is in the case [sic], custody or control of the person who caused
      the death.” Similarly, the offense gravity score has been raised

                                     -7-
J-S64005-16


      from six to eight where the victim is a child in the care of the
      perpetrator.     Thus, the [trial] court failed to support its
      imposition of a manifestly excessive and unreasonable sentence
      with justification based on the circumstances of this matter.

            Further, the [trial] court relied entirely on Appellant’s
      arrest record as predictors of the instant matter, and of future
      conduct, despite any hint of misbehavior in Appellant’s prison
      record.

           Accordingly, there are substantial questions as to the
      sentencing court’s actions contrary to the fundamental norms
      underlying the sentencing process, resulting in an excessive and
      unreasonable sentence.

Appellant’s Brief at 14-15. Based on the foregoing Rule 2119(f) statement,

we conclude that Appellant has raised a substantial question with respect to

his first and second issues on appeal.     See Commonwealth v. Goggins,

748 A.2d 721, 732 (Pa. Super. 2000) (“When fashioning a sentence, a

sentencing court may not ‘double count’ factors already taken into account

in the sentencing guidelines.”), appeal denied, 759 A.2d 920 (Pa. 2000);

Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (finding

appellant raised a substantial question for the Court’s review when claiming

that the trial court “considered factors already included in the guidelines.”);

see also Commonwealth v. Oliver, 693 A.2d 1342, 1347-48 (Pa. Super.

1997) (“The claim that a sentencing court imposed a sentence outside of the

guidelines and failed to state adequate reasons for the sentence imposed

does present a substantial question that the sentence is inappropriate under

the Sentencing Code.”). However, his third issue claiming that the sentence

is excessive does not raise a substantial question to the extent it is not




                                     -8-
J-S64005-16



subsumed by the first issue.8           See Fisher, 47 A.3d at 159 (“[A] bald

assertion that a sentence is excessive does not itself raise a substantial

question justifying this Court’s review of the merits of the underlying

claim.”); see also Commonwealth v. Bromley, 862 A.2d 598, 604 (Pa.

Super. 2004) (explaining defendant did not raise a substantial question by

merely asserting sentence was excessive when he failed to reference any

section of Sentencing Code potentially violated by the sentence), appeal

denied, 881 A.2d 818 (Pa. 2005).               Accordingly, we address the merits of

Appellant’s first two issues.

       After careful review of the record, and the relevant case law, we

conclude that the trial court accurately and thoroughly addressed the merits

of the issues considered on appeal. See Trial Court Opinion, 12/22/15, at 3-

7.   Accordingly, we affirm the trial court’s July 31, 2015 judgment of

sentence.    We further direct that a copy of the trial court’s December 22,

2015 Rule 1925(a) Opinion be attached to any future filings in this case.

       Judgment of sentence affirmed.




____________________________________________


8
 Even if we were to grant review of Appellant’s third issue, he still would not
be entitled to relief as explained in the trial court’s Rule 1925(a) opinion.



                                           -9-
J-S64005-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/7/2016




                          - 10 -
                                                                                                                Circulated 10/28/2016 12:24 PM


                                                                                                                                        FILED
                                      IN THE COURT OF COMMON PLEAS                                                            DEC 2 2 2015
                                 FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                          CRIMINAL TRIAL DIVISION                                                           PostTrial Unit
            COMMONWEAL TH OF                                                           CP-51-CR-0008582-2011
            PENNSYLVANIA

                                                                            CP-51-CR-0008582-2011   C01'.1m. v wn,iyyut!di11, Man..iui,r;c p
                     v.                                                                              Opmlor1




            MARQUISE W ALIYYUDDIN

                                                           OPINION
                                                                                    II I
                                                                                 II Ill/7386327231
                                                                                          I II/I Ill I/II I Ill
            BRONSON, J.                                                                               December 22, 2015


            On March 22, 2013, following a non-jury trial before this Court, defendant Marquis

    Waliyyuddin was convicted of one count of involuntary manslaughter (18 Pa.C.S. § 2504(a)) and

    one count of endangering the welfare of a child ("EWOC") (18 Pa.C.S. § 4304(a)(l)).1 The

    Court deferred sentencing so that a pre-sentence report and mental health evaluation could be

prepared. On May 24, 2013, the Court sentenced defendant to four to eight years in state prison

for the involuntary manslaughter charge and one to two years for the EWOC charge, to run

consecutively, for an aggregate sentence of five to ten years ("original sentence").                                     Defendant

filed a post-sentence motion, which the Court denied on September 16, 2013. Defendant

appealed the sentence imposed by the Court and, on November 25, 2014, the Superior Court held

that EWOC and involuntary manslaughter merged for purposes of sentencing, vacated

defendant's sentence, and remanded for a new sentencing hearing. On April 14, 2015, the

Pennsylvania Supreme Court denied the Commonwealth's petition for allocator. Pursuant to the

Superior Court remand, the Court held a new sentencing hearing on July 31, 2015, and sentenced

defendant to five to ten years incarceration on the involuntary manslaughter charge ("new

sentence"). Defendant filed post-sentence motions, which the Court denied on November 17,

I
    The Court acquitted defendant of one count of third-degree murder (18 Pa.C.S. § 2502(c)).
2015. Defendant has now appealed his sentence on the grounds that: 1) the Court improperly

sentenced defendant beyond the aggravated range based on an improper factor; 2) the Court's

sentence was manifestly excessive and unreasonable; and 3) the Court erred at sentencing by

improperly relying on defendant's arrest record. Statement of Errors Complained of on Appeal

at~ 4 ("Statement of Errors"). For the reasons set forth below, defendant's claims are without

merit.

                                     I. FACTUALBACKGROUND

         The factual basis for this matter was summarized in this Court's opinion in defendant's

original direct appeal as follows:

         At trial, the Commonwealth presented the testimony of Yywanka Walker, Katrina
         Rodriguez, Luis Torres, Dr. Shaheen Timmapuri, Dr. Aaron Rosen, Dr. Lucy Rorke-
         Adams, Philadelphia Police Officer Christopher Brennan, and Philadelphia Police
         Detective John Harkins. Defendant presented the testimony of Dr. Jan Edward Leestma.
         Viewed in the light most favorable to the Commonwealth as the verdict winner, their
         testimony established the following.

         On the evening of Saturday, May 14, 2011, defendant was at the apartment of his friend,
         Katrina Rodriguez, who was the mother of AS., a healthy three-month-old baby boy.
         N.T. 3/20/2013 at 52-56, 59. Defendant was the godfather of AS., and had babysat for
         him on several occasions without incident. N.T. 3/20/2013 at 57-58. Also present was
         defendant's boyfriend, Luis Torres. N.T. 3/20/2013 at 50-51, 59. At around 11 :00 p.m.,
         defendant told Rodriguez that he wanted to keep A.S. for an overnight stay. N.T.
         3/20/2013 at 59. Rodriguez agreed that defendant could take AS. to the apartment that
         defendant shared with Torres until the next day. N.T. 3/20/2013 at 66. Defendant and
         Torres left with A.S., who was alert and without any observable problems at the time.
         N.T. 3/20/2013 at 66-69, 143-144, 148.

         Sometime during the afternoon of the next day, Torres left defendant and AS. to visit
         Torres' mother for dinner. N.T. 3/20/2013 at 165-167. During dinner, Torres received a
         frantic call from defendant, who told Torres that AS. was not breathing. N.T. 3/20/2013
         at 167. Torres, his brother, and his aunt left the house and rushed to defendant's
         apartment. N.T. 3/20/2013 at 169-170. When they arrived and saw AS., Torres's aunt
         called 911. N.T. 3/20/2013 at 171-172.

          Paramedics arrived at the apartment at approximately 7:30 p.m. N.T. 3/20/2013 at 39-
         40. A.S. was taken to St. Christopher's Hospital, where, despite emergency cranial
         surgery, he died at 11 :55 p.m. N.T. 3/20/2013 at 44; 3/21/2013 at 11-12, 28. The




                                                 2
        autopsy of A.S. revealed subarachnoid and subdural hematomas, and optic-nerve
        hemorrhages, all consistent with vigorous shaking of the baby's head. N.T. 3/21/2013 at
        13, 35, 41-42. The medical examiner requested a consult from a pediatric
        neuropathologist, who concluded that A.S. died from abusive head trauma. N.T.
        3/21/2013 at 118-119.

        Defendant gave a statement to police on May 16, 2011. N.T. 3/20/2013 at 225. In that
        statement, he admitted to getting frustrated when A.S. awoke during the night crying, and
        that he "was rocking him harder, and was shaking him, just trying to get him to stop
        crying." N.T. 3/20/2013 at 233. He further admitted putting A.S. into his car seat and
        "rocking the car seat back and forth pretty hard" causing A.S. to bounce back and forth in
        the seat. Defendant stated that he "could hear [A.S.'s] head bouncing back on the back of
        the car seat." N.T. 3/20/2013 at 233. According to defendant, this eventually caused A.S.
        to stop crying. N.T. 3/20/2013 at 233. Defendant was subsequently arrested. N.T.
        3/20/2013 at 239-240.

Trial Court Opinion, filed 1 /6/14 at 2-3.

                                             IL DISCUSSION

       A. Improper Sentencing Factor

       Defendant first claims that "[t]he Court erred in sentencing Appellant beyond the

aggravated range of the Sentencing Guidelines based on an improper factor, that is, the age of the

victim, a factor already contemplated and provided for by the Guidelines in the grading of the

crime and in the offense gravity score." Statement of Errors at ,r 4(a). This claim was set forth

in defendant's appeal of his original sentence. However, as the Superior Court remanded this

matter for new sentencing, the Superior Court did not address defendant's challenge in its

November 25, 2014 opinion. Superior Court Opinion, filed 11/25/14 at p. 10. This claim is

without merit.

       "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 that discretion."

Commonwealth v. Anderson, 552 A.2d 1064, 1072 (Pa. Super. 1988), app. denied, 571 A.2d 3 79

(Pa. 1989); see Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007). Where the sentence falls




                                                 3
outside the Sentencing Guidelines, the sentence should be affirmed on appeal unless it is

"unreasonable." 42 Pa.C.S. § 978 l(c)(3); see Commonwealth v. P.L.S., 894 A.2d 120, 130 (Pa.

Super. 2006). "The sentencing court may deviate from the guidelines, if necessary, to fashion a

sentence which takes into account the protection of the public, the rehabilitative needs of the

defendant, and the gravity of the particular offenses as it relates to the impact on the life of the

victim and the community." Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super.

2002), appeal denied, 820 A.2d 703 (Pa. 2003). The factual basis and reasons for the departure

must be stated on the record. Id.

        Involuntary manslaughter is ordinarily a first-degree misdemeanor. However, where, as

here, the victim is under the age of 12 years old, and is in the care, custody or control of the

person who caused the death, the offense is graded as a second degree felony. 18 Pa.C.S. §

2504(b). More importantly for defendant's argument, while the offense gravity score for

involuntary manslaughter graded as a first-degree misdemeanor is 6, the offense gravity score

increases to 8 for the second-degree felony. See 204 Pa.Code § 303.15. Defendant is correct that

it would be unlawful to premise a departure above the guidelines on a factor that the guidelines

have explicitly taken into account. Therefore, defendant argues that since the guidelines already

augment the offense gravity score when the victim is young, the Court erred in considering the

age of the victim as a reason for an upward departure.

       Here, however, at both the original sentencing hearing and the new sentencing hearing,

the Court premised its departure above the guidelines not merely on the fact that the victim was

under the age of twelve, which was contemplated by the guidelines, but rather on the fact that as

a three-month old baby, the victim was in a far more vulnerable subclass of children under the

age of 12. The Court stated at both hearings that, "when you have an infant as a victim, three-




                                                  4
month-old-victim and when the guidelines come from a population of everybody under 12 years

old, this is a particularly vulnerable subclass of that category not taken into account by the

sentencing guidelines." N.T. 5/24/2013 at 36; 7/31/15 at 18.

        Moreover, defendant's claim that it is improper to base an upward departure on the

precise age of the victim when the guidelines explicitly account for youth has been squarely

rejected by the Supreme Court of Pennsylvania. See Commonwealth v. Walls, 926 A.2d 957,

966-67 (Pa. 2007).    In Walls, the defendant was convicted of the rape of a victim less than 13

years old and involuntary deviate sexual intercourse of a child less than 13 years old. 926 A.2d

at 966. The sentencing court departed above the Sentencing Guidelines on both charges, giving

as one of the reasons for the departure that the victim was only seven years old. Walls, 926 A.2d

at 960. The Supreme Court affirmed the judgment of sentence, holding that the sentencing court

could properly use the victim's precise age to justify a departure above the Guidelines. Walls,

926 A.2d at 967. As the Court stated, "the fact that the victim was only seven years old at the

time of the sexual abuse was not an element of rape or IDSI with a victim less than thirteen years

old and could justify an above-guideline sentence which might be more heinous than the rape of

an older child." Walls, 926 A.2d at 966.

        The case at bar is indistinguishable from Walls. If it is lawful to consider as a ground for

departing from the guidelines that a victim is seven years old, when the guidelines apply to all

children under the age of 13, then a fortiori, it is entirely proper to consider the particular

vulnerability of a three-month-old when the guidelines apply to all children under the age of 12.




                                                   5
           B. Manifestly Excessive Sentence

           Defendant next claims that the Court erred "in imposing a sentence both manifestly

excessive and unreasonable under all the circumstances of the case." Statement of Errors at~

4(b ). This claim is without merit.

           "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 that discretion."

Commonwealth v. Anderson, 5 52 A.2d 1064, 1071 (Pa. Super. 1998); see Commonwealth v.

    Walls, 926 A.2d 957 (Pa. 2007). The sentencing court must consider the need to protect the

public, the gravity of the offense in relation to the impact upon the victim, the rehabilitative

needs of the defendant, and the Sentencing Guidelines. 42 Pa.C.S. § 9721 (b); see

Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa. Super. 2005) (quoting Commonwealth v.

Monahan, 860 A.2d 180, 184 (Pa. Super. 2004)). "[An] appellate court is to exercise its

judgment in reviewing a sentence outside the sentencing guidelines to assess whether the

sentencing court imposed a sentence that is unreasonable."              Walls, 962 A.2d at 963; 42 Pa.C.S. §

9781 (c)(3).

          Here, in fashioning an appropriate sentence, the Court explicitly considered the evidence

presented during defendant's trial, the information contained in the pre-sentence report, the

Sentencing Guidelines, the gravity of the offense, the mitigation evidence submitted on behalf of

defendant, as well as the rehabilitative needs of defendant.           N.T. 7/31/15 at 4-5.2 Moreover, the

record demonstrates that the Court's sentence of five to ten years in prison, albeit in excess of the

sentencing guidelines, was well justified. Defendant extinguished the life of a defenseless baby


2
  Defendant's prior record score was zero. N.T. 5/24/13 at 4. Using the basic sentencing matrix, and applying the
Sixth Edition Revised Sentencing Guidelines, the parties agreed that the charge of involuntary manslaughter was
assigned a standard range of 9 to 16 months, plus or minus 9 months for the aggravated and mitigated ranges,
respectively. N.T. 5/24/13 at 4-5.




                                                         6
entrusted to his care because he became frustrated with the baby's crying. His admitted conduct,

of shaking the baby aggressively and vigorously, even while the baby's head was banging on the

back of a car seat, until he succeeded in silencing the infant, was an egregious misbehavior that

the court properly believed to be outside of the heartland of a typical involuntary manslaughter

case. Moreover, as the Court stated at sentencing, defendant's prior record score of zero greatly

understated defendant's criminal history. N.T. 5/24/2013 at 36-37; 7/31/15 at 20. Although

defendant was never convicted of a crime, he had six arrests, including three domestic violence

incidents. N.T. 5/24/2013 at 17-18, 36-37; 7/31/15 at 18-20. Under all of the circumstances, a

departure above the sentencing guidelines was appropriate and reasonable. Therefore, the

Court's sentence should not be disturbed.

        C. Reliance upon Defendant's Arrest Record

       Finally, defendant claims that the Court erred by "improperly relying on [defendant's]

arrest record as evidence of prior criminality and a predictor of future misconduct."    Statement of

Errors at ,r 4(c). However, "[i]t has been held that a court, in imposing sentence may consider

prior arrests ... as long as the court realizes that the defendant has not been convicted on those

prior charges." Commonwealth v. Bryant, 458 A.2d 1010, 1011-12 (Pa. Super. 1983) (quoting

Commonwealth v. Craft, 450 A.2d 1021, 1024 (Pa. Super. 1981 ). As stated above, while

recognizing at sentencing that defendant was never convicted of a crime, he had six arrests,

including three domestic violence incidents, which the Court was permitted to consider. N.T.

5/24/2013 at 17-18, 36-37; 7/31/15 at 18-20. Accordingly, this claim is without merit.




                                                  7
                              III. CONCLUSION

For all of the foregoing reasons, the Court's judgment of sentence should be affirmed.




                                                    BY THE COURT:




                                                    GLENN B. BRONSON, J.




                                        8
