J-S25022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    ERIN KATHLEEN VANMATRE                     :
                                               :
                      Appellant                :   No. 2478 EDA 2016

              Appeal from the Judgment of Sentence July 12, 2016
                In the Court of Common Pleas of Monroe County
              Criminal Division at No(s): CP-45-CR-0000523-2016

BEFORE:      BENDER, P.J.E., RANSOM, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY RANSOM, J.:                                  FILED JUNE 13, 2017

        Appellant Erin Kathleen VanMatre appeals from the judgment of

sentence of twenty-four to eighty-four months of incarceration, imposed July

12, 2016, following her guilty plea to criminal conspiracy to commit robbery,

a felony in the third degree.1 We affirm.

        The relevant facts and procedural history are as follows.      In April

2016, Appellant entered an open guilty plea to conspiring to commit robbery

of an eighty-year-old woman. After observing the elderly woman in Rite Aid

Pharmacy, Appellant and Co-defendant William Hayhurst (“Co-defendant”)

followed the woman to her residence. When the woman’s vehicle stopped,

Co-defendant grabbed the woman’s purse and fled with Appellant.            The

woman collided her car into their car in an effort to stop them. She followed

____________________________________________


1
    18 Pa.C.S. § 903.
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their vehicle until they threw her purse out the window, with the woman’s

wallet and cash missing. See Trial Ct. Op., 9/28/2016, at 1.

        After considering the pre-sentence investigation (PSI) report, the trial

court sentenced Appellant as described above on July 12, 2016. Appellant’s

motion to reconsider the sentence was denied without a hearing on July 15,

2016.

        Appellant   timely   appealed   and   filed   a   court-ordered   1925(b)

statement. The court filed a responsive opinion.

        On appeal, Appellant raises the following issue:

        1. Did the trial court abuse its discretion at sentencing when the
           court gave [Appellant] a sentence of twenty-four (24) to
           eighty-four (84) months, which is a departure sentence where
           the standard guideline range is six (6) to sixteen (16) months
           with an aggravated range of up to nineteen (19) months,
           without any justification for the departure?

Appellant’s Br. at 6.

        Appellant raises a challenge to discretionary aspects of her sentence.

The right to appellate review of the discretionary aspects of a sentence is not

absolute and must be considered a petition for permission to appeal.

Commonwealth v. Coulverson, 34 A.3d 135, 142 (Pa. Super. 2011);

Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa. Super. 2007); see also

Pa.R.A.P. 2119(f). To invoke this Court's jurisdiction when challenging the

discretionary aspects of a sentence, we must consider the following four-part

test:
        (1) whether appellant has filed a timely notice of appeal; (2)
        whether the issue was properly preserved at sentencing or in a


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      motion to reconsider and modify sentence; (3) whether
      appellant's brief has a fatal defect; and (4) whether there is a
      substantial question that the sentence appealed from is not
      appropriate under the Sentencing Code.

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

      Instantly, we note that Appellant has complied with the first two

requirements. Appellant filed a timely notice of appeal. She preserved the

issue in her post-sentence motion to reconsider sentence.             However,

Appellant has not included a 2119(f) statement in her brief. See Pa.R.A.P.

2119(f). In order to raise a challenge to discretionary aspects of sentencing,

an appellant must inter alia articulate in her Rule 2119(f) statement a

substantial question to invoke this court’s jurisdiction. Commonwealth v.

Mouzon, 812 A.2d 617, 626 (Pa. 2002); see 42 Pa.C.S. § 9781(b).

However, in light of Commonwealth’s failure to object to the statement’s

absence, we decline to deem the issue waived.             Commonwealth v.

Broughter, 978 A.2d 373, 374 (Pa. Super. 2009).

      Next, we address whether Appellant presents a substantial question.

“The determination of whether the particular issue raised constitutes a

substantial   question   is   evaluated   …   on   a   case   by   case   basis.”

Commonwealth v. Jones, 640 A.2d 914, 917 n.4 (Pa. Super. 1994) (citing

Commonwealth v. McFarlin, 587 A.2d 732 (Pa. Super. 1991) (en banc),

affirmed, 607 A.2d 730 (Pa. 1992)).        A substantial question exists “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

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the sentencing process.” Commonwealth v. Sierra, 752 A.2d 910, 912-13

(Pa. Super. 2000) (quoting Commonwealth v. Brown, 741 A.2d 726, 735

(Pa. Super. 1999) (en banc), allocatur denied, 790 A.2d 1013 (Pa. 2001)).

     Here, Appellant contends that the court imposed a sentence that was

excessive and manifestly unreasonable when it imposed a sentence outside

of the sentencing guidelines. Appellant’s challenge constitutes a substantial

question. Commonwealth v. Davis, 737 A.2d 792, 798 (Pa. Super. 1999)

(“A claim that the sentencing court imposed an unreasonable sentence by

sentencing outside the guideline ranges raises a ‘substantial question’ which

is reviewable on appeal.”).   Accordingly, we will proceed to address her

substantive argument.

        The standard under which we review sentencing claims is well
     established.    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 every case where the court imposes a sentence outside the
     sentencing guidelines adopted by the Pennsylvania Commission
     on Sentencing ... the court shall provide a contemporaneous
     written statement of the reason or reasons for the deviation
     from the guidelines. Failure to comply shall be grounds for
     vacating the sentence and re-sentencing the defendant.... The
     statute requires a trial judge who intends to sentence a
     defendant outside the guidelines to demonstrate on the record,
     as a proper starting point, his awareness of the sentencing
     guidelines. Having done so, 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 offense
     as it relates to the impact on the life of the victim and the
     community, so long as he also states of record the factual basis
     and specific reasons which compelled him to deviate from the
     guideline range.

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          When evaluating a claim of this type, it is necessary to
      remember that the sentencing guidelines are advisory only. If
      the sentencing court deems it appropriate to sentence outside
      the guidelines, it may do so as long as it offers its reasons.
      [O]ur Supreme Court has indicated that if the sentencing court
      proffers reasons indicating that its decision to depart from the
      guidelines is not unreasonable, we must affirm a sentence that
      falls outside those guidelines..... [I]n exercising its discretion,
      the trial court must consider the character of the defendant and
      the particular circumstances of the offense, and must impose a
      sentence that is consistent with the protection of the public, the
      gravity of the offense, and the rehabilitative needs of the
      defendant.

Davis, 737 A.2d at 798-99 (internal quotation marks and citations omitted).

      An appellate court reviewing a departure sentence must vacate and

remand a case where it finds that the sentenced imposed is unreasonable.

42 Pa.C.S.A. § 9781(c)(3). In making a reasonableness determination, we

consider the following factors:

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

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

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

      (4)   The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d); see Sheller, 961 A.2d at 190–91.

      A court is required to consider the particular circumstances of the

offense and the character of the defendant, including her prior criminal

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

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


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545 U.S. 1148 (2005). When it is clear that the sentencing court reviewed a

PSI report, “we presume that the sentencing judge was aware of the

relevant information regarding the defendant's character and weighed those

considerations along with mitigating statutory factors.” Commonwealth v.

Devers, 546 A.2d 12, 18 (Pa. 1988).

      “When imposing a sentence, the sentencing court is required to

consider the sentence ranges set forth in the Sentencing Guidelines, but it

[is] not bound by the Sentencing Guidelines.” Commonwealth v. Sheller,

961 A.2d 187, 190 (Pa. Super. 2008) (citations omitted).         The court may

deviate from the recommended guidelines, if necessary, to accomplish

adequate protection of the public, address Appellant’s rehabilitative needs,

while taking into account the “gravity of the particular offense as it relates to

the impact on the life of the victim and the community.” Sheller, 961 A.2d

at 190 (quoting Commonwealth v. Eby, 784 A.2d 204, 206 (Pa. Super.

2001)).

      The only constraints placed on the court’s discretion in
      sentencing matters are that the sentence imposed must be
      within the statutory limits; the record must show that the court
      considered the sentencing guidelines in light of the above
      balancing standard; and, if the court deviates from the
      sentencing guidelines, the record must demonstrate a
      contemporaneous statement of reasons for the departure. The
      requirement of a contemporaneous statement explaining any
      deviation from the sentencing guidelines is satisfied when the
      sentencing judge states the reasons on the record in the
      defendant’s presence.

Jones, 640 A.2d at 917 (internal citations omitted); 42 Pa.C.S. § 9721(b).



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      In her brief, Appellant contends that the court failed to provide a

justification for the departure from the sentencing guidelines.           See

Appellant's Br. 10-11. The record belies this contention.

      At Appellant’s sentencing hearing, the court was cognizant that the

standard range indicated by the sentencing guidelines for conspiracy to

commit robbery was six to sixteen months and that the aggravated range

was nineteen months. See Sentencing Transcript (“S.T.”), 7/12/2016, at 2.

Nevertheless, the Commonwealth recommended a departure sentence of

thirty months. Id. Thus, the court was aware that it imposed a sentence

that exceeded the guideline range when it imposed a sentence of twenty-

four to eighty-four months.

      In addition, the court considered the PSI report, which identified three

aggravating factors, which potentially justified a departure sentence,

including the nature and circumstances of this offense, a pre-planned

personal attack on an eighty-year-old elderly woman.        Id. at 6; see also

PSI Report (“PSI”), 7/6/2016, at 8.          Further, the court considered

Appellant’s prior record in which Appellant victimized the elderly in two prior

robberies. S.T. at 4; PSI at 7. In addition, Appellant had three misconducts

while incarcerated, demonstrating a lack of amenability to rehabilitation.

See S.T. at 5; PSI at 7-8. On the record, the court stated that Appellant

had exhibited a pattern of conduct in crimes against the elderly and had a

serious drug problem that contributed to parole violations, revocation of


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probation, and poor performance on supervision. See S.T. at 6. The court

deemed three misconducts while incarcerated and the victim’s age as

aggravating circumstances justifying the deviation from the guidelines. Id.

        Nevertheless, Appellant argues that the existence of aggravating

factors are cause for a sentence within the aggravated range but do not

justify a departure from the sentencing guidelines.         See Appellant's Br. at

12. We disagree.

        The sentencing code gives the trial court discretion to sentence a

defendant outside of the sentencing guidelines while considering the

sentencing guidelines, the background and character of the defendant, and

the circumstances surrounding the crime.                See Commonwealth v.

Lawson, 650 A.2d 876, 882 (Pa. Super. 1994). The court may consider a

crime    committed   against   the   elderly   as   a    “substantial   aggravating

circumstance” at sentencing. Id. (citing Commonwealth v. Darden, 531

A.2d 1144, 1149-50 (Pa. Super. 1987) (noting that the age of defenseless

seventy-year-old woman victim could be considered as a “substantial

aggravating factor” to justify a sentence outside the guideline ranges)).

        Here, the sentencing court noted the nature and circumstances of this

crime against an eighty-year-old woman on the record at sentencing. See

S.T. at 6.     The court also considered Appellant’s pattern of conduct in

personally targeting the elderly. See id. Here, Appellant had a history of

committing similar crimes against the elderly.          See Lawson, 650 A.2d at


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882 (noting that the sentencing court may consider a defendant’s prior

convictions).

      Based on the record, the court was cognizant that it imposed a

sentence outside of the applicable guideline range in an effort to balance the

protection of the public, the gravity of the offense, and Appellant’s

rehabilitative needs. See 42 Pa.C.S. § 9721(b); Sheller, 961 A.2d at 190–

91. The court acted reasonably in considering all of the factors identified by

Section 9781(d) given the gravity of the offense and the impact on the

community.      Accordingly, we discern no abuse of discretion.   Jones, 640

A.2d at 917.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/13/2017




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