J-S27010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

MICHAEL GALLAGHER,

                            Appellant                No. 1230 MDA 2015


             Appeal from the Judgment of Sentence June 23, 2015
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0005379-2014


BEFORE: SHOGAN and DUBOW, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                               FILED MAY 05, 2016

       Appellant, Michael Gallagher, appeals from the judgment of sentence

entered on June 23, 2015, in the Dauphin County Court of Common Pleas.

We affirm.

       In its PaR.A.P. 1925(a) opinion, the trial court provided the underlying

facts of this case as follows:

             Toward the end of August of 2014, the four-month-old
       child, L.G., who is Appellant’s child, was presented to the
       Children’s Hospital of Philadelphia with injuries. (Notes of
       Testimony, Guilty Plea, May 5, 2015, 4). The child was having
       episodes of unresponsiveness, vomiting, etc. (N.T., 25). It was
       determined that the child had a traumatic brain injury which
       included multiple retinal hemorrhages and chronic and bilateral
       subdural hematomas. (N.T., 4). After investigation, the police
       determined that when Appellant was residing in the family home,
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*
    Former Justice specially assigned to the Superior Court.
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      on multiple occasions and due to frustration with a crying baby,
      he shook the child multiple times. (N.T., 4). Appellant also
      confessed that he threw the child on to the changing table and
      acts of that nature which caused the brain injury. (N.T., 4).

Trial Court Opinion, 9/17/15, at 2.

            Appellant was arraigned on November 24, 2014. On May
      5, 2015, Appellant entered a plea of guilty to Aggravated Assault
      and Endangering the Welfare of Children.

            On June 23, 2015, Appellant was sentenced as follows:

            Count 1 [aggravated assault] — 7½-15 years in
            SCI, fine of $1,000 plus costs;

            Count 2 [endangering welfare of children] — 3-6
            years in SCI, fine of $500 plus costs, concurrent with
            Count 1.

             On June 25, 2015, Appellant filed a Post-Sentence Motion
      to Modify which this Court denied by Order dated June 30, 2015.
      The Commonwealth filed a Motion for Modification of Sentence to
      Include Restitution on July 2, 2015. This Court granted
      Appellant’s Application for Leave to Appeal In Forma Pauperis on
      July 17, 2015. Then, Appellant filed a Notice of Appeal to the
      Superior Court on July 17, 2015. On July 20, 2015, this Court
      filed an Order directing Appellant to file a concise statement of
      matters complained of on appeal within twenty-one (21) days.
      Appellant filed a Statement of Matters Complained of on Appeal
      on August 10, 2015.

Trial Court Opinion, 9/17/15, at 1.

      On appeal, Appellant presents the following issue for this Court’s

consideration:

      Whether the trial court erred in sentencing Appellant to an
      aggregate sentence of 7½ to 15 years in a state correctional
      institution, in the aggravated range of the sentencing guidelines,
      where such a sentence is excessive and unreasonable and
      constitutes too severe a punishment in light of Appellant’s
      rehabilitative needs, and what is necessary to protect the public?

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Appellant’s Brief at 5 (underscoring omitted).

        Appellant’s claim of error is a challenge to the discretionary aspects of

his sentence. It is well settled that a challenge to the discretionary aspects

of a sentence is a petition for permission to appeal, as the right to pursue

such a claim is not absolute. Commonwealth v. Treadway, 104 A.3d 597,

599 (Pa. Super. 2014).        Before this Court may review the merits of a

challenge to the discretionary aspects of a sentence, we must engage in the

following four-pronged analysis:

        [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. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citing

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)).

        We note that Appellant has met the first three parts of the four-prong

test:    Appellant filed a timely appeal; Appellant preserved the issue in a

post-sentence motion; and Appellant included a statement pursuant to

Pa.R.A.P. 2119(f) in his brief. Thus, we next assess whether Appellant has

raised a substantial question with respect to the issues he presents.

        A determination as to whether a substantial question exists is made on

a case-by-case basis. Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super.



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2000). This Court will grant the appeal “only 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.”         Id. at

912-913.

      In Appellant’s brief, he argues that his sentence was manifestly

excessive such that it constitutes too severe a punishment under the facts of

this case.    Appellant’s Brief at 10.   We conclude that Appellant’s claim

presents a substantial question for our review.     See Commonwealth v.

Mouzon, 812 A.2d 617, 624 (Pa. 2002) (“A claim that a sentence is

manifestly excessive such that it constitutes too severe a punishment raises

a substantial question.”). Therefore, we will review the merits of Appellant’s

challenges.

      Our standard of review in appeals of sentencing is well settled:

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law,
      exercised its judgment for reasons of partiality, prejudice, bias
      or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Mann, 957 A.2d 746, 749 (Pa. Super. 2008).

      A sentencing judge has broad discretion in determining a reasonable

penalty, and this Court affords the sentencing court great deference, as it is

the sentencing court that is in the best position to view the defendant’s


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character, displays of remorse, defiance, or indifference, and the overall

effect and nature of the crime. Commonwealth v. Walls, 926 A.2d 957,

961 (Pa. 2007) (quotations and citations omitted). 1        When imposing a

sentence, the sentencing court must consider “the protection of the public,

the gravity of the offense as it relates to the impact on the life of the victim

and on the community, and the rehabilitative needs of the defendant.” 42

Pa.C.S. § 9721(b). As we have stated, “[A] court is required to consider the

particular circumstances of the offense and the character of the defendant.”

Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa. Super. 2002).                   In

particular, the sentencing court should refer to the defendant’s prior criminal
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1
    The Walls Court instructed the following:

       In making this “unreasonableness” inquiry, the General
       Assembly has set forth four factors that an appellate court is to
       consider:

       (d) Review of the record.—In reviewing the record the appellate
       court shall have regard for:

              (1) The nature of the circumstances of the offense
              and the history and characteristics of the defendant.

              (2) The opportunity of the sentencing court to
              observe the defendant, including any pre-sentence
              investigation.

              (3) The findings upon which the sentence was based.

              (4) The guidelines promulgated by the commission.

       42 Pa.C.S. § 9781(d).

Walls, 926 A.2d at 963.



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record, his age, personal characteristics, and his potential for rehabilitation.

Id.

      Moreover, it is well settled that sentencing courts are not bound by the

Sentencing Guidelines as they are merely advisory.         Commonwealth v.

Sheller, 961 A.2d 187, 190 (Pa. Super. 2008) (citation omitted).            The

sentencing court may deviate from the Guidelines as they are one factor

among many that the court must consider when imposing a sentence. Id.

(citation omitted). The sentencing court “may depart from the [G]uidelines

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 offense as it relates to the impact on the life of the victim and the

community.” Id. (internal quotation marks and citation omitted).

      In the case sub judice, the trial court had the benefit of a presentence

investigation report.   N.T., 6/23/15, at 2, 22.     “Our Supreme Court has

determined that where the trial court is informed by a pre-sentence report,

it is presumed that the court is aware of all appropriate sentencing factors

and considerations, and that where the court has been so informed, its

discretion should not be disturbed.” Commonwealth v. Ventura, 975 A.2d

1128, 1135 (Pa. Super. 2009) (citation omitted). “The sentencing judge can

satisfy the requirement that reasons for imposing sentence be placed on the

record by indicating that he or she has been informed by the pre-sentencing

report; thus properly considering and weighing all relevant factors.”       Id.


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(citing Commonwealth v. Fowler, 893 A.2d 758, 766-767 (Pa. Super.

2006)).

     The trial court addressed Appellant’s argument as follows:

            Here, the Sentencing Guidelines call for a maximum term
     of ten to twenty years with a [standard] range of 36 to 54
     months. (Notes of Testimony, Sentencing, June 23, 2015, 25).
     Additionally, consideration of Appellant’s lack of prior criminal
     record should be and was accounted for in the sentencing
     guidelines as determined by his prior record score of zero. (See
     Commonwealth v. Celestin, 825 A.2d 670 (Pa. Super. 2003)).
     (N.T., 2). Furthermore, this Court considered a pre-sentence
     investigative report, the sentencing guidelines, a victim impact
     statement, as well as a statement from both the Appellant and
     the Commonwealth. (N.T., 1-21). Additionally, this Court noted
     that the sentence reflected Appellant’s own admission of a need
     to get help as well as Appellant’s attempt to make excuses for
     his heinous conduct. (N.T., 23-26). Specifically, this Court
     focused on the fact that although Appellant claims he did not
     want to hurt the child, it can easily be inferred from his ongoing
     abuse to the child that it is clear that he intended to hurt the
     child and that he did in fact hurt the child. (N.T., 22).

           Upon consideration of all the above information, this Court
     determined that Appellant was in need of state supervision as
     well as long term anger management rehabilitation. (N.T., 26-
     27). The [90 to 180 month] sentence imposed by this Court
     provides for anger management counseling as well as for state
     supervision in order to protect the public. The sentence imposed
     was not unreasonable nor excessive or severe in light of
     Appellant’s heinous conduct and the need for long-term
     rehabilitation.

           Appellant further argues that this Court erred in omitting
     his reasons for deviating from the sentencing guidelines on the
     record. A sentencing judge is permitted to deviate from the
     sentencing guidelines but “must place on the record the reasons
     for the deviation.” 42 Pa. C.S.A. § 9721(b); Commonwealth v.
     Byrd, 441 Pa.Super. 351, 657 A.2d 961 (1995). The appellant
     must establish, by reference to the record, that the sentencing
     court ignored or misapplied the law, exercised its judgment for
     reasons of partiality, prejudice, bias, or ill will, or arrived at a

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      manifestly unreasonable decision. Commonwealth. v. Garcia-
      Rivera, 983 A.2d 777, 781 (Pa. Super. 2009). Appellant’s
      argument is without merit.

             Here, this Court clearly set forth a statement of reasons for
      deviating from the guidelines. This Court stated that we “had
      difficulty swallowing Appellant’s statements that he didn’t want
      to hurt the child because it can be inferred from Appellant’s
      ongoing conduct with the child that he did intend to hurt the
      child and clearly hurt the child.” (N.T., 24-25). This Court further
      stated, “while the maximum term of ten to twenty years is
      lessened due to Appellant’s acknowledgement of responsibility,
      the middle range of 36-54 months can’t possibly address such
      conduct.” (N.T., 24-25). This Court went on to state that, “the
      sentence that we are about to give this defendant will serve not
      only as a warning for others that engage in this kind of conduct
      but will punish him for what he did and will ensure that society is
      safe from him and that he will have an opportunity for long-term
      rehabilitation.” (N.T., 25-26).

Trial Court Opinion, 9/17/15, at 3-5.

      After review, we note that the trial court considered the testimony

from the witnesses, reviewed the presentence investigation report, had the

opportunity to evaluate the remorse expressed by Appellant, and carefully

articulated its reasons for the sentence imposed.     N.T., 6/23/15, at 3-17,

19-20, 22-26.    The trial court was cognizant that the victim was a four-

month-old child, Appellant’s infant son.     Id. at 22. Moreover, Appellant

admitted that he inflicted the abuse in a manner whereby he attempted to

minimize visible bruising to the child in order to prevent detection of his

criminal actions.   Id. (citing the presentence investigation report).       The

Sentencing Guidelines provided for a standard minimum-range sentence

between thirty-six to fifty-four months. 204 Pa.Code § 303.16. However,


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the trial court chose to deviate from the Guidelines and thoroughly explained

its rationale.   N.T., 6/23/15, at 25.   Because the trial court considered all

relevant factors, stated the recommended minimum sentence provided in

the Guidelines, and then stated its reasons for departing from the

Guidelines, we discern no abuse of discretion in the sentence imposed.

Sheller, 961 A.2d at 190.

      For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Accordingly, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/5/2016




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